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THE  LAW  OF  THE  SEA 


SHIPPING  SERIES 

TRAINING    FOR   THE    STEAMSHIP    BUSINESS 

EDITORS: 

Emory  R.  Johnsoi^    Ph.D.,  Sc.D. 

Dean  of  the  Wharton  School  of  Finance  and  Com- 
merce,   University   of    Pennsylvania. 

Roy  S.  MacElwee,  Ph.D. 

Director  of  the  U.   S.   Bureau  of  Foreign  and  Domestic 
Commerce. 

1.  Ocean  Steamship  Traffic  Management. 

By  G.  G.  Huebnee,  Ph.D. 

Training  in  the  responsibilities  of  the  broker,  the 
freight  agent  and  other  traffic  agencies,  and  in  the 
forms  used   in  the   shipping  business. 

2.  Marine  Insurance. 

By   S.  S.  Huebnek,    Ph.D. 

Training  in  the  important  responsibilities  of  the  marine 
insurance  agent  and  broker. 

3.  The  Law  of  the  Sea. 

By  George  L.  Canfield,  LL.B.,  and  George  W.  Dalzell. 

Legal  relations,  rights,  duties,  and  obligations  of  ship- 
pers, steamship  owners,  operators,  masters,  and  sea- 
men; the  legal  relations  of  the  ship  from  construction 
contract  to  sale  as  salvage. 

4.  Merchant  Vessels. 

By  Robert  Riegel,  Ph.D. 

Their  types,  uses,  tonnage,  measurements,  and  con- 
struction ;  some  things  the  steamship  man  ashore  should 
know  about  ships. 

5.  Wharf    Management    and    Stevedoring  and  Storage. 

By    R.    S.    MacElwee,    Ph.D.,   and    Thomas    R.    Taylor, 
A.M. 

Duties  of  the  pier  superintendent,  receiving  clerks,  tally 
men,  and  stevedore  foreman.  Includes  wharf  layout 
and  construction,  cargo-handling  machinery,  port  charges 
and  dues,  stevedoring,  longshoremen,  labor  problems, 
etc. 

6.  Steamship    Operation.     (Projected.) 


T-230  D 


THE  LAW   OF  THE   SEA 

A    MANUAL   OF    THE    PRINCIPLES    OF    ADMIRALTY    LAW 
FOR    STUDENTS,    MARINERS,    AND    SHIP    OPERATORS 


BY 

GEORGE  L.  CANFIELD 

OF  THE    MICHIGAN    BAR 

AND 

GEORGE  W.  DALZELL 

OF  THE   BAR  OF  THE   DISTRICT  OF  COLUMBIA 


WITH  A  SUMMARY  OF  THE  NAVIGATION  LAWS 
OF  THE  UNITED  STATES 

BY 

JASPER  YEATES  BRINTON 


D.  APPLETON  &  COMPANY 

NEW   YORK  LONDON 

1921 


1  I97H4 


COPYRIGHT,    1921,   BY 

D.  APPLETON  AND  COMPANY 


■*  •      •    '  , 


PRINTED   TN   THE    UNITED    STATES    OT   AMEMOA 


EDITORS'  PREFACE 

<3  This  is  the  third  volume  of  a  series  of  manuals  dealing  with 
^  the  business  of  ocean  shipping  and  transportation.  The  first 
volume  published  dealt  with  steamship  traffic  operation  and  was 
written  by  Professor  G.  G.  Huebner.  The  second  volume  was 
upon  "  Marine  Insurance,"  the  author  being  Professor  S.  S. 
Huebner.  In  the  first  volume  published,  the  following  preface 
appeared : 

"  This  volume  upon  the  management  of  ocean  steamship  traffic 
o,    is  the  first  of  a  series  of  manuals  designed  to  assist  young  men 
♦^    in  training  for  the  shipping  business.     The  necessity  for  such  a 
^    series  of  manuals  became  evident  when,  as  a  result  of  the  great 
vV^  war,  the  tonnage  of  vessels  under  the  American  Flag  was,  within 
a  brief  period,  increased  many  fold.     To  carry  on  the  war  and 
to  meet  the  demands  of  ocean  commerce  after  the  war,  the  United 
States    Government,   through   the    Shipping   Board   and   private 
,  ,   shipyards,  brought  into  existence  a  large  mercantile  marine.     If 
ri\. these   ships   are   to   continue   in   profitable  operation   under  the 
*^  American  Flag,  the  people  of  the  United  States  must  be  trained 
to  operate  them.     Steamship  companies,  ship-brokers  and  freight- 
forwarders  must  all  be  able  to  secure  men  necessary  to  carry  on 
^  the  commercial  and  shipping  activities  that  make  use  of  the  ships. 
*  J  A  successful  merchant  marine  requires  ships,  men  to  man  the 
^  ships,  and  business  organization  to  give  employment  to  the  vessels. 
"  In  its  Bulletin  upon  *  Vocational  Education  for  Foreign  Trade 
and  Shipping  '  (since  republished  as  '  Training  for  Foreign  Trade,' 
Miscellaneous  Series  No.  97,  Bureau  of  Foreign  and  Domestic 
Commerce,  for  sale  by  the  Superintendent  of  Documents),  the 
Federal  Board  for  Vocational  Education  includes  among  other 
courses  suggested  for  foreign  trade  training  two  shipping  courses 
upon  subjects  with  which  exporters  should  be  familiar,  namely, 
'  Principles  of  Ocean  Transportation  '  and  '  Ports  and  Terminals.' 
Although  such  general  courses  are  helpful  to  the  person  engaging 
in  the  exporting  business,  a  training  for  the  steamship  business 


vi  EDITORS'  PREFACE 

as  a  profession  requires  much  greater  detail  in  the  knowledge  of 
concrete  facts  of  a  routine  nature.  An  analysis  was  made  of  the 
various  divisions  of  the  steamship  office  organization  and  it  was 
suggested  to  the  United  States  Shipping  Board  that  as  no  litera- 
ture existed  of  sufficient  practicability  and  detail  several  manuals 
should  be  written  covering  the  principal  feature  of  shore 
operations. 

"  The  response  of  the  Shipping  Board  was  hearty.  The  Ship- 
ping Board  appointed  Mr.  Emory  R.  Johnson  of  its  staff,  then 
conducting  an  investigation  of  ocean  rates  and  terminal  charges, 
as  its  editor.  The  Federal  Board  for  Vocational  Education  desig- 
nated Mr.  R.  S.  MacElwee,  then  engaged  in  the  preparation  of 
studies  in  foreign  commerce.  Before  the  project  was  completed 
Mr.  Johnson  severed  his  connection  with  the  Shipping  Board  in 
1919,  and  January,  1919,  Mr.  MacElwee  became  Assistant  Direc- 
tor of  the  Bureau  of  Foreign  and  Domestic  Commerce,  Depart- 
ment of  Commerce.  The  interest  of  the  editors  in  the  project 
did  not  terminate,  however,  and  their  close  cooperation  has  been 
voluntarily  continued  out  of  conviction  that  the  works  will  be 
helpful. 

"  The  books  have  been  written  with  a  view  to  their  being  read 
by  individual  students  conducting  their  studies  without  guidance, 
also  with  the  expectation  that  they  will  be  used  as  class  text- 
books. Doubtless  colleges,  technical  institutes  and  high  schools 
having  courses  in  foreign  trade,  shipping  business  and  ocean 
transportation,  will  desire  to  use  these  volumes  as  class  texts  in 
a  manner  outlined  in  '  Training  for  the  Steamship  Business,'  by 
R.  S.  MacElwee,  Miscellaneous  Series  98,  Bureau  of  Foreign  and 
Domestic  Commerce,  Superintendent  of  Documents,  Washington, 
D.  C.  It  is  expected  that  evening  classes  and  part-time  schools, 
organized  under  the  patronage  of  the  Federal  Board  for  Voca- 
tional Education,  Chambers  of  Commerce,  and  other  interested 
organizations  will  find  the  manuals  useful.  Should  these  volumes 
accomplish  the  desired  purpose  of  giving  the  American  people  a 
somewhat  greater  proficiency  in  the  business  of  operating  ships, 
they  will  have  proven  successful." 

This  volume  on  "The  Law  of  the  Sea  "  is  intended  to  present 
the  principles  of  admiralty  law  in  concise  and  practical  form. 
It  is  a  manual  for  the  student,  the  owner,  or  the  master  of  a 


EDITORS'  PREFACE  vii 

vessel  who  may  desire  to  acquire  information  concerning  the 
main  facts  and  principles  of  maritime  law  without  attempting  to 
acquire  such  a  mastery  of  the  subject  as  is  possessed  by  an 
admiralty  lawyer. 

The  Editors 


AUTHORS'  PREFACE 

This  book  is  not  an  exhaustive  treatise  or  a  compendium  of 
authorities.  It  is  designed  to  be  an  outUne  of  the  subject  pri- 
marily for  the  student,  more  especially  the  student  layman  who 
desires  to  inform  himself  of  the  general  principles  of  admiralty 
law. 

It  is  impracticable  in  a  work  of  this  sort  to  reprint  the  statutes 
relating  to  the  various  subjects  of  admiralty  jurisprudence,  since 
the  federal  statutes  alone  would  constitute  a  volume  more  exten- 
sive than  this.  The  salient  features  of  the  statutes  have  been 
noticed  and  references  given  to  all  of  them.  They  are  to  be 
found  in  the  Revised  Statutes,  the  Compiled  Statutes,  the  Stat- 
utes at  large,  and  in  the  compilation  of  Navigation  Laws  pub- 
lished by  the  Bureau  of  Navigation,  U.  S.  Department  of 
Commerce. 

The  subject  of  marine  insurance  is  treated  in  another  volume 
of  this  series  and  is,  therefore,  omitted  here. 

In  the  chapter  on  Collision,  we  have  not  discussed  the  fixing 
of  liability  under  particular  circumstances  of  navigation,  such  as 
collision  between  vessels  meeting,  vessels  passing,  etc.  While 
these  matters  are  treated  in  most  text-books,  their  discussion 
belongs  largely  to  navigation  and  is  useful  only  in  a  legal  treatise 
for  the  purpose  of  determining  liability  after  an  accident  has 
occurred.  It  could  not  guide  the  reader  to  avoid  collision  lia- 
bility, and  is  therefore  omitted  in  a  work  intended  rather  as  a 
guide  for  the  avoidance  of  trouble  than  as  a  dictionary  of 
remedies. 

For  the  same  reason,  only  the  most  cursory  sketch  of  admiralty 
procedure  has  been  given.  That  is  the  province  of  the  proctor, 
who  must  be  consulted  when  litigation  has  become  necessary. 

The  reader  will  find  that  a  few  subjects  treated  in  the  body  of 
the  work  are  also  covered  in  Appendix  I  (Summary  of  the  Nav- 
igation Laws).  This  is  due  to  the  fact  that  the  appendix  was 
prepared  for  independent  publication.     The  repetitions  are  not 

ix 


X  AUTHORS'  PREFACE 

numerous  and,  as  the  treatment  is  different  in  form,  it  will  be 
found  advantageous  to  the  student  rather  than  otherwise. 

Acknowledgment  is  made  to  Miss  Florence  A.  Colford  of  the 
District  of  Columbia  bar,  for  valuable  and  painstaking  aid. 

G.  L.  C. 
G.  W.  D. 


CONTENTS 

CHAPTEB  PAOl 

Editors'  Preface v 

Authors'  Preface ix 

I.    Maritime  Law i 

1.  General  Maritime  Law i 

2.  Sources  in  United  States i 

3.  Courts 2 

4.  Jurisdiction        2 

A.  The  Ship 2 

B.  The   Waters 3 

5.  Maritime  Contracts  and  Torts 4 

6.  Personality  of  Ship 5 

7.  Limits  of  Liability 5 

8.  Equitable    Principles        6 

9.  General  Considerations 6 

IL  Title  and  Transfer 10 

1.  How  Title  Acquired 10 

2.  Registration  and  Regulation  10 

3.  Shipbuilding   Contracts 10 

4.  Not  Within  Admiralty  Jurisdiction 12 

5.  Enrollment  and  Registration 12 

6.  Ships  Entitled  to 12 

7.  Incidents  of  Enrollment  or  Registration      ......  13 

8.  How    Obtained , I4 

9.  Recording  of  American-built  Foreign  Ships 16 

10.  Name ^6 

11.  Sale 17 

12.  Transfer  of  Flag  and  Sales  to  Foreigners i7 

13.  Admiralty  Sales ^8 

14.  Sales  by  Trustees  and  Executors I9 

15.  Sales  by  Mortgagee ^9 

16.  Sales  by  Master ^9 

17.  Sale  of  Ship  at  Sea 22 

18.  Appurtenances         ^3 

19.  Warranties  and  Representations 23 

in.    Owners   and  Managers 25 

1.  Who  May  Be 25 

2.  Part-owners 25 

3.  Corporations 27 

4.  Majority  Interest 20 

5.  Minority  Interest 20 

6.  Suits  Between  Part-Owners 30 

7.  Authority  of  Owner 30 

8.  Obligation  of  Owner 30 

xi 


xli  CONTENTS 

CHAPTBE  PAGE 

9.     Liability  of  Owner 31 

10.  Temporary  Ownership 33 

11.  Managing   Owner 36 

12.  Compensation  and  Lien TH 

IV.  The  Master 39 

1.  Appointment  and  General  Authority 39 

2.  Personal  Liability 41 

3.  Restriction  on  Authority 41 

4.  Rights  of  Master 43 

5.  Wages 43 

6.  Lien 44 

7.  Relations  to  Cargo 45 

8.  Power  to  Sell  or  Mortgage  Cargo 46 

9.  Power  to  Sell  Vessel 50 

10.  Power  to  Create  Liens 50 

11.  Duties  on  Disaster 51 

12.  Log  Book  and  Protests 52 

V.  Seamen 54 

1.  Favored  in  Maritime  Law 54 

2.  Who   Are  Seamen? 54 

3.  Contract 55 

4.  Wages   Secured 55 

5.  Forfeitures  and  Punishments 55 

6.  Personal   Injuries 56 

7.  Duties  in  Disaster 58 

8.  Offenses  of  Seamen 59 

9.  When  Entitled  to  Leave  Ship 60 

10.  Desertion 60 

11.  Self-Defense 61 

12.  Lien  for  Wages 61 

13.  Shipping   Articles 63 

14.  Wages  and  Effects 64 

15.  Protection  and  Relief 66 

VL    Carriage  by  Sea 69 

1.  Common  and  Private  Carriers 69 

2.  Liabilities 69 

3.  Seaworthiness 70 

4.  Loading  and  Stowage 72 

5.  Wreck  or   Stranding 75 

6.  Arrival  and   Discharge 76 

7.  Freight   and   Demurrage 7y 

8.  Unfair  Freight  Rates 79 

9.  Passengers 79 

10.  Reciprocal   Duties 79 

11.  Baggage        81 

12.  Personal    Injuries 81 

13.  Loss  of  Life 83 

VII.    Contracts  of  Affreightment,  Bills  of  Lading  and  Charter 

Parties 86 

1.  Definitions 86 

2.  Seaworthiness 87 

3.  Deviation 88 

4.  Perils  of  the  Sea 89 


•■r;> 


CONTENTS  xiii 


CHAPTER  PAOa 

5.  Fire 89 

6.  Restraint  of   Princes 90 

7.  Freight 91 

(a)  Dead  Freight 91 

(b)  When  Freight  Is  Earned 91 

8.  Contracts  of  Affreightment 91 

9.  Bills  of  Lading 92 

10.  Statements  in  Bills  of  Lading 96 

11.  Negotiability  of  Bills  of  Lading 98 

12.  Duration  of  Carrier's  Liability 99 

13.  Exceptions  in  Bills  of  Lading 99 

14.  Valuation 99 

15.  Notice  of  Claim 100 

16.  Nature  and  Effect  of  Charter  Party 100 

17.  Subcharters loi 

18.  Provisions  in  Charter  Parties loi 

(a)  Safe  Port loi 

(b)  Insurance 102 

(c)  Redelivery 102 

(d)  Cancellation   and   Withdrawal 102 

(e)  Breakdown   Clause 102 

19.  Lien  for  Freight  and  Charter  Hire 103 

20.  Liability  for  Loss  or  Damage 104 

21.  Demurrage  and  Laydays 105 

22.  Breach  of  Charter 106 

23.  Dissolution  of  Charter 107 

VIII.    Liabilities  and  Limitations 112 

1.  Liabilities  of  Ship 112 

2.  Liabilities  of  Owner 112 

3.  Liabilities  of  Charterer II3 

4.  Liabilities  of  Mortgagee "3 

5.  Liabilities  of   Underwriters 11.^ 

6.  Theories  of  Limitation II4 

7.  Contract   Limitations ii5 

8.  The  Federal  Statutes "5 

9.  "Privity  or  Knowledge" "7 

10.  Harter   Act ii9 

11.  Insurance 123 

12.  Single  Ship  Companies 123 

IX.    Maritime    Liens ^25 

1.  How  Created ^^5' 

2.  Essential   Value ^^7 

3.  Independent  of  Notice  of  Possession '^'^■7 

4.  Secret ^27 

5.  Diligence  Required '^^7 

6.  Rules  of  Diligence ;,  ,;     '  ,  "     *     '  ^^o 

7.  Recording  Liens  on  "  Preferred  Mortgage     Vessels      .     .  128 

8.  Limited  to  Movable  Things ^29 

9.  Priorities ^^^ 

10.  Lien  for  Repairs  and  Supplies ^" 

11.  Not  Sole  Remedy ^^^ 

12.  How   Divested ^^^ 


xiv  CONTENTS 

CHAPTIB  PAGB 

13.  State  Liens 135 

14.  Builders'   and  Mechanics'  Liens 136 

15.  Foreign  Liens 136 

16.  Enforcement  of  Liens 137 

X.  Mortgages  and  Bonds 138 

1.  Definitions 138 

2.  Bottomry   Bonds 138 

3.  Respondentia 140 

4.  Necessity  for  Advances 141 

5.  Mortgages 141 

6.  Are  Mortgages  Maritime  Contracts? 141 

7.  When  Postponed  to  Other  Liens 142 

8.  Form 143 

g.     Recording 144 

10.  Rights  of  Mortgagee 144 

11.  Liabilities  of  Mortgagee 145 

12.  Transfer  and  Payment 145 

13.  Foreclosure 145 

XI.  Collision         148 

1.  Definition 148 

2.  Liability  Dependent  on  Negligence 148 

3.  Tests  of  Negligence 149 

4.  The   Regulations 150 

5.  Damage  to   Ship 151 

6.  Damage  to  Cargo 152 

7.  Damage  to  Crew  and  Passengers 155 

8.  Contribution IS5 

9.  Division  of  Damages I5S 

10.  Lien 156 

11.  Limitation  of  Liability 157 

12.  Remedies 157 

13.  Evidence 158 

XIL    Tou^AGE  AND  Pilotage 159 

1.  Definition 159 

2.  Towage  Service 159 

3.  Compensation 160 

4.  Duty  of  Tug 160 

5.  Duty  of  Tow 165 

6.  Negligence 165 

7.  Liability  for  Damage 168 

A.  As  Between  Tug  and  Tow 168 

B.  To  Third  Parties 169 

8.  Pilots 172 

9.  Duties 173 

10.  Authority I74 

11.  Compensation I74 

12.  Negligence I75 

13.  Liability  of  Ship I77 

XI IT.    Salvage  and  General  Average 180 

1.  Definitions       180 

2.  What  May  Be  Salved 180 

3.  Salvor's  Lien 181 


CONTENTS  XV 

CHAPTEB  PAOB 

4.  Amount  of  Reward 182 

5.  Who  May  Be  Salvors 183 

6.  Distinction  Between  Towage  and  Salvage 184 

7.  Distribution  of   Salvage  Award 185 

8.  Distribution  of  Liability  for  Payment 186 

9.  Statutory  Regulations 187 

ID.  Instances  of  Salvage  Services 187 

11.  Distinction  Between  General  and  Particular  Average     .     .  i8g 

12.  Essential  Elements i8q 

13.  Instances  of  General  Average 190 

14.  The  Adjustment 191 

XIV.  Crimes  Committed  at  Sea 193 

1.  Definition I93 

2.  Admiralty  Criminal  Jurisdiction 193 

3.  Place  of  Trial , I94 

4.  Offenses  Not  Consummated  on  Shipboard i94 

5.  Penalties  and  Forfeitures i95 

6.  Federal  Criminal  Code 196 

7.  Concurrent  Jurisdictions I97 

8.  Limitations  of  Prosecutions 1^ 

9.  Piracy ^9° 

10.  Barratry ^99 

11.  Failure  to  Equip  with  Radio  Telegraph 200 

12.  Failure  to  Disclose  Liens 200 

13.  Mutiny 200 

XV.  Wrecks  and  Derelicts 202 

I.  Definitions 202 

2  Wrecks  Under  the  Common  Law 202 

3.  Wrecks  Within  Admiralty  Jurisdiction 204 

4.  Liabilities  of  Owner  of  Wreck 205 

5.  Rights  of  Landowner 205 

6.  Owner's  Rights 200 

7.  Rights  of  Government ^ 

8.  Derelicts ^ 

9.  Finders ' 

XVI.  Wharfage  and  Moorage 2°9 

1.  Definition ^ 

2.  Right  to  Erect ^°9 

3.  Duties  of  Proprietor 

4.  Rights  of  Proprietor 

5.  Wharfage   Compensation •  ^^^ 

6.  Lien 214 

7.  Injuries  to  Wharves '215 

8.  Anchorage    .     .     .     .     ; 216 

9.  Obstructions  to  Navigation 

...  218 

XVII.  Admiralty  Remedies 

^  ,-         •     r.  ....  218 

1.  Proceedings   in   Rem       .     .     •     •     .... 

2.  When  Proceedings  in  Rem  Will  Lie ^^^ 

3.  The    Libel 220 

4.  The  Writ  or  Process *.     .  220 

5.  Owner's    Rights 220 

6.  Default 


xvi  CONTENTS 

APPENDICES 

CHAPTER  PAGE 

7.  Interlocutory   Sales 221 

8.  Intervenors        221 

9.  Costs  and  Expenses 221 

10.  Proceedings  in  Personam 222 

11.  Process  in  Personam       .     .     •  .  •  . 222 

12.  Proceedings  in  Limitation  of  Liability 222 

I.    Summary  of  Navigation  Laws  of  the  United  States  .    .     .     .225 

II.    The  Merchant  Marine  Act  of  1920 263 

III.    Protest 290 

Table  of  Cases 291 

Index 299 


THE  LAW  OF  THE  SEA 


CHAPTER  I 
MARITIME  LAW 

1.  General  Maritime  Lawi —  Navigation  and  commerce  by 
sea  are  regulated  by  maritime  law.  This  is  a  branch  of  juris- 
prudence which  developed  out  of  the  necessities  of  the  business 
with  which  it  has  to  deal.  It  is,  therefore,  as  old  as  navigation 
itself  and  many  of  its  rules  can  be  traced  back  to  antiquity.  It 
extends  over  all  navigable  waters  and  is  enforced  by  courts  of 
admiralty.  _.  ^ 

This  law  is  to  be  found  in  the  statutory  laws  of  difTerent  a 
countries,  the  decisions  of  the  courts  and  text-books  on  the  sub- 
jects involved.  Back  of  the  laws  of  each  particular  country  is 
what  is  termed  the  general  maritime  law  or  common  law  of 
the  sea,  which,  like  the  common  law  of  the  land,  consists  of  that 
general  mass  of  usages  and  customs  which  exists  by  the  universal 
consent  and  immemorial  practice  of  those  doing  business  by  sea. 
It  is  eflfective  within  particular  countries  only  so  far  as  they 
consent  to  follow  it,  as  is  the  case  with  international  law,  of 
which  it  is  really  a  part.  In  general,  however,  it  is  recognized 
and  enforced  wherever  the  local  laws  are  silent  in  regard  to  mari- 
time transactions. 

2.  Sources  in  United  States. —  In  the  United  States,  the  mari-    -  ^  ^ 
time  law  is  to  be  found  in  the  Statutes  or  Acts  of  Congress  and 
decisions  of  the  Federal  Courts.     These  decisions  are  published 

in  the  United  States  Reports,  Federal  Cases  and  Federal  Re- 
porter. In  addition  there  are  numerous  text-books,  among  which 
may  be  mentioned  Parsons  on  Shipping  and  Admiralty;  Bene- 
dict's Admiralty;  Hughes  on  Admiralty;  Desty  on  Shipping  and 
Admiralty;  Spencer  on  Collisions  and  Flanders  on  Maritime  Law. 
The  highest  authority  is,  of  course,  to  be  found  in  the  Decisions 
of  the  Supreme  Court  of  the  United  States.  y^ 

3.  Courts.—  The  Constitution  provides  that  the  judicial  power  J) 
of  the  United  States  shall  extend  to  all  cases  of  admiralty  and  ^Ji^ 


^-k 


2  THE  LAW  OF  THE  SEA 

maritime. jurisdiction;  this  jurisdiction  is  confided  to  the  District 
Courts,  of  which  there  are  several  in  each  state;  appeals  he  from 
their  decisions  to  the  Circuit  Courts  of  Appeals ;  there  are  nine  of 
these,  corresponding  to  the  nine  judicial  circuits  into  which  the 
nation  is  divided ;  the  Supreme  Court  has  a  general  supervisory- 
jurisdiction  over  all  other  courts.  While  parties  having  maritime 
■  controversies  may  resort  to  state  courts  in  cases  where  the  common 
law  affords  a  remedy,  the  admiralty  jurisdiction  of  the  federal 
courts  is  so  much  more  effective  in  all  matters  pertaining  to 
the~~Hhip  that  they  handle  j)ractically  all  the  litigation  on  the 
subject. 
<;?  4.  Jurisdiction. —  a.  The  Ship. —  According  to  the  maritime 
law  of  the  United  States  the  ship  is  not  within  the  jurisdiction  of 
the  admiralty  until  she  is  completed;  while  she  is  engaged  in  com- 
merce and  navigation,  that  jurisdiction  is  exclusive^*  tvhen  she  be- 
comes a  wreck  and  passes  out  of  the  business  for  which  she  was 
intended,  the  jurisdiction  relaxes  and  is  finally  withdrawn. 
Therefore  our  admiralty  does  not  take  cognizance  of  matters 
growing  out  of  the  building  of  the  ship  nor  of  the  controversies 
arising  after  she  is  broken  up. 

It  sometimes  becomes  a  question  of  some  difificulty  whether  a 
particular  object  is  or  is  not  a  vessel  and  subject  to  admiralty 
jurisdiction.  Rev.  Stat.,  §  3,  define  "  vessel  "  as  including  "  every 
description  of  watercraft  or  other  artificial  contrivance,  used  or 
capable  of  being  used  as  a  means  .of  transportation  by  water," 
and  in  General  Cass,  i  Brown  Adm.  334,  it  was  said : 

The  true  criterion  by  which  to  determine  whether  any  watercraft 
or  vessel  is  subject  to  admiralty  jurisdiction  is  the  business,  or  em- 
ployment for  which  it  is  intended,  or  is  susceptible  of  being  used, 
or  in  which  it  is  actually  engaged,  rather  than  size,  form,  capacity 
or  means  of  propulsion. 

In  one  or  two  old  cases  it  was  held  that  a  dredge  was  not  a 
ship  but  the  preponderance  of  authority  is  to  the  effect  that  a 
dredge  is  a  ship  and  within  admiralty  jurisdiction.  The  ques- 
tion whether  a  raft  of  logs  is  a  vessel  has  been  variously  decided'. 
If  it  be  a  mere  pile  or  series  of  floating  logs  it  is  probably  not 
a  vessel,  but  rafts  made  of  cross-ties,  used  as  a  convenient  mode 
of  bringing  them  to  market,  manned  by  crew,  who  lived  thereon 
during  the  voyage  and  propelled  by  the  current  and  by  poles  and 
oars,  have  been  held  to  be  a  ship  and  subject  to  admiralty  juris- 


MARITIME  LAW  3 

diction.^  So,  also,  a  floating  bathhouse,  not  permanently  moored, 
but  which  was  towed  from  place  to  place  has  been  held  to  be  a 
vessel;  whereas  a  floating  drydock,  kept  permanently  moored, 
is  not  a  vessel.  The  question  whether  barges  and  floats  are  sub- 
ject to  admiralty  jurisdiction  has  been  the  subject  of  frequent 
adjudication,  and  while  some  old  cases  held  that  they  were  not, 
the  tendency  of  the  modern  decisions  is  to  hold  that  such  crafts 
are  vessels.  In  the  Mac,  7  P.  D.  126,  the  question  was  whether 
a  hopper  barge  was  a  ship.  It  was  decided  in  the  affirmative  l)y 
the  English  Court  of  Appeal,  Lord  Justice  Brett  saying: 

The  words  "  ship  "  and  "  boat "  are  used ;  but  it  seems  plain  to  me 
that  the  word  "  ship  "  is  not  used  in  the  technical  sense  as  denoting 
a  vessel  of  a  particular  rig.  In  popular  language  ships  are  of  differ- 
ent kinds;  barques,  brigs,  schooners,  sloops,  cutters.  The  word  in- 
cludes anything  floatt4og  in  or  upon  the  water,  built  in  a  particular 
form,  and  used  for  a  particular  purpose.  In  this  case  the  vessel, 
if  she  may  be  so  called,  was  built  for  a  particular  purpose;  she  was 
built  as  a  hopper-barge ;  she  has  no  motive  power,  no  means  of 
progression  within  herself.  Towing  alone  will  not  conduct  her; 
she  must  have  a  rudder;  and,  therefore,  she  must  have  men  on  board 
to  steer  her.  Barges  are  vessels  in  a  certain  sense;  and,  as  the  word 
"  ship  "  is  not  used  in  a  strictly  nautical  meaning,  but  is  used  in  a 
popular  meaning,  I  think  that  this  hopper-barge  is  a  "  ship."  .  .  . 
This  hopper-barge  is  used  for  carrying  men  and  mud;  she  is  used 
in  navigation;  for  to  dredge  up  and  carry  away  mud  and  gravel 
is  an  act  done  for  the  purposes  of  navigation.  Suppose  that  a  saloon- 
barge,  capable  of  carrying  200  persons,  is  towed  down  the  river 
Mersey  in  order  to  put  passengers  on  board  of  vessels  lying  at  its 
mouth;  she  would  be  used  for  the  purposes  of  navigation,  and  I 
think  it  equally  true  that  the  hopper-barge  was  used  in  navigation. 

h.  The  Waters. —  The  waters  included  in  admiralty  jurisdiction 
are,  first,  the  sea;  second,  streams  in  which  the  tide  ebbs  and 
flows;  and  third,  waters  which  carry  substantial  water-borne 
commerce.  The  fact  that  a  navigable  stream  may  lie  entirely 
within  the  borders  of  a  single  state  and  thus  be  unnavigable  for 
interstate  commerce,  does  not  exclude  the  admiralty  jurisdiction. 
Nice  questions  occasionally  come  before  the  courts  in  determining 
whether  or  not  a  particular  body  of  water  is  navigable  and  there- 
fore within  the  admiralty  jurisdiction.     There  seems  to  be  no 

1 "  The  first  vessels  were  rafts.  The  raft  is  the  parent  of  the  modern 
ship"   (Seabrook  v.  Raft,  40  Fed.  596). 


4  THE  LAW  OF  THE  SEA 

precise  test,  beyond  the  capacity  of  the  stream  to  carry  sub- 
stantial commerce. 

5.  Maritime  Contracts  and  Torts. —  The  general  subject 
matter  of  admiralty  jurisdiction  is  maritime  contracts  and  mari- 
time torts  or  injuries.  A  contract  is  maritime  when  it  relates 
to  the  ship  as  an  instrument  of  commerce  and  navigation.  Thus 
the  hiring  of  a  master,  the  purchase  of  supplies,  the  charter- 
party  or  bill-of-lading,  an  agreement  of  towage,  and  the  like  are 
maritime  contracts.  The  principle  by  which  to  determine  whether 
a  contract  is  maritime  in  its  nature,  was  laid  down  by  the 
Supreme  Court  in  the  case  of  the  Belfast,  7  Wall.  624:"^'"  Con- 
tracts, claims,  or  service,  purely  maritime  and  touching  rights 
and  duties  appertaining  to  commerce  and  navigation,  are  cog- 
nizable in  the  admiralty  courts."  And  in  Insurance  Co.  v.  Dun- 
ham, 1 1  Wall.  I : 

As  to  contracts,  it  has  been  equally  well  settled  that  the  English 
rule  which  concedes  jurisdiction,  with  a  few  exceptions,  only  to  con- 
tracts made  upon  the  sea  and  to  be  executed  thereon  (making  locality 
the  test)  is  entirely  inadmissible  and  that  the  true  criterion  is  the 
nature  and  subject-matter  of  the  contract,  as  whether  it  was  a  mari- 
time contract,  having  reference  to  maritime  service  or  maritime 
transactions. 

Perhaps  the  best  criterion  of  the  maritime  character  of  a  contract 
is  the  system  of  law  from  which  it  arises  and  by  which  it  is  governed. 
And  it  is  well  known  that  the  contract  of  insurance  sprang  from  the 
law  maritime,  and  derives  all  its  material  rules  and  incidents  there- 
from. 

The  test  is  not  altogether  definite,  nor  always  easy  to  apply. 
As  was  said  in  Grant  v.  Poillon,  20  How.  162 :  "  It  may  be  dif- 
ficult, if  not  impracticable,  to  state  with  precision  the  line  of  this 
jurisdiction,  but  we  may  approximate  it  by  consulting  the  decisions 
of  our  own  courts." 

A  tort  is  a  wrong,  independent  of  contract,  that  is,  it  is  the 
breach  of  a  duty  which  is  imposed  by  law  and  not  by  contract. 
A  tort  is  maritime  when  it  is  committed  on  navigable  waters. 
Injuries  to  sailors  on  shipboard,  damage  to  cargo  and  collision 
at  sea  are  maritime  torts.  Illustration  of  maritime  torts  and  a 
distinction  between  land  and  maritime  torts  will  be  found  in  the 
chapters  on  Collisions  and  Maritime  Liens,  infra.  The  case  of 
Hough  V.  Western  Transportation  Co.,  3  Wall.  20,  may  be  men- 


MARITIME  LAW  5 

tioned  here.  A  vessel  made  fast  to  a  wharf  took  fire  by  the 
negligence  of  the  master  and  crew.  The  fire  was  comnuinicated 
to  the  wharf  and  destroyed  it  with  the  buildings  adjacent  thereto. 
The  court  held  that  although  the  origin  of  the  wrong  was  on  the 
water,  the  substance  and  consummation  of  the  injury  occurred  on 
land  and  the  case  was  not  within  admiralty  jurisdiction. 

Salvage  and  general  average  are,  strictly,  neither  contract  nor 
tort,  but  are  within  admiralty  jurisdiction  by  virtue  of  the  general 
law. 

6.  Personality  of  Ship. —  In  considering  the  maritime  law,  it 
is  important  to  remember  that  one  of  its  underlying  ideas  is  that 
the  ship  has  a  personality  of  her  own.  In  the  common  law,  or 
law  of  the  land,  there  is  a  similar  notion  in  regard  to  corporations ; 
they  are  legal  persons  quite  apart  from  the  stockholders  who 
compose  them.  Sb  the  ship  has  a  legal  individuality  quite  apart 
from  that  of  her  owners.  She  may  sue  in  the  name  of  her  owner 
and  be  sued  in  her  own  name.  The  principle  has  been  expresse(| 
by  the  Supreme  Court: 

A  ship  is  b(!rrn  when  she  is  launched,  and  lives  so  long  as  her  iden- 
tity is  preserved.  Prior  to  her  launching  she  is  a  mere  congeries  of 
wood  and  iron  —  an  ordinary  piece  of  personal  property  —  as  dis- 
tinctly a  land  structure  as  a  house,  and  subject  only  to  mechanics' 
liens  created  by  a  state  law  and  enforceable  in  the  state  courts.  In 
the  baptism  of  launching  she  receives  her  name,  and  from  the  mo- 
ment her  keel  touches  the  water  she  is  transformed,  and  becomes  a 
subject  of  admiralty  jurisdiction.  She  acquires  a  personality  of  her 
own;  becomes  competent  to  contract,  and  is  individually  liable  for 
her  obligations,  upon  which  she  may  sue  in  the  name  of  her  owner, 
and  be  sued  in  her  own  name.  Her  owner's  agents  may  not  be  her 
agents,  and  her  agents  may  not  be  her  owner's  agents.  She  is  capa- 
ble, too,  of  committing  a  tort,  and  is  responsible  in  damages  therefor. 
She  may  also  become  a  quasi  bankrupt ;  may  be  sold  for  the  payment 
of  her  debts,  and  thereby  receive  a  complete  discharge  from  all  prior 
liens,  with  liberty  to  begin  a  new  life,  contract  further  obligations, 
and  perhaps  be  subjected  to  a  second  sale.  Tucker  v.  Alexandroff, 
183  U.  S.  424,  438. 

7.  Limits  of  Liability.— It  is  important  in  all  dealings  with 
the  ship,  whether  by  way  of  investment  of  capital,  or  labor,  or 
by  entrusting  goods  to  her  for  carriage,  or  by  making  repairs 
or  furnishing  supplies,  to  remember  that  the  ship  may  be  both  the 
basis  and  the  limit  of  financial  liability,  unless  her  owners  in  some 
way  add  their  personal  responsibility  thereto.     It  was  appreciated 


6  THE  LAW  OF  THE  SEA 

at  an  early  day  in  the  history  of  navigation  that  capitalists  would 
not  invest  in  ships  unless  there  was  some  limit  to  their  liability 
on  that  account.  Ships  are  wanderers  and  capitalists  can  seldom 
navigate  them.  No  form  of  investment  can  produce  such  large 
liabilities  at  any  time.  The  owners  can  not  supervise  them  in 
person  but  must  entrust  their  operations  to  others  beyond  their 
control.  Hence,  out  of  the  necessities  of  the  situation,  the  doc- 
trine developed  that  the  ship  must  be  treated  as  an  individual, 
responsible  for  her  own  acts,  and  that  the  owner's  responsibility 
was  limited  to  his  investment  unless  he  personally  went  beyond 
this  protection. 

8.  Equitable  Principles. —  The  maritime  law  proceeds  on 
equitable  principles  and  endeavors  to  accomplish  substantial  jus- 
tice between  litigants,  with  brevity,  celerity  and  simplicity.  It 
is  impatient  at  technicalities  and  cunning  bargains.  Its  jurisdic- 
tion is  not  limited  by  any  financial  amount  or  geographical  boun- 
daries, so  long  as  the  transaction  is  maritime  in  its  nature.  It 
is  quick  to  redress  unfair  dealing  or  oppression.  There  is  no  dis- 
tinction as  to  the  persons  who  may  invoke  its  aid.  It  is  a  very  im- 
portant part  of  modern  commercial  law,  as  it  was  originally  of 
the  old  law  merchant,  and  therefore  is  very  practical  and  respon- 
sive to  the  demands  of  business ;  but  it  has  also  had  the  benefits  of 
the  accumulated  wisdom  of  many  progressive  ages  before  this 
one,  and  is  therefore  cautious  about  untried  innovations  or 
thoughtless  experiments.  Its  claim  to  the  attention  of  mankind 
rests  only  on  the  inherent  equity  and  justice  of  its  rules  and  the 
celerity  with  which  they  may  be  applied  to  the  solution  of  disputes, 
and  without  these  characteristics  it  would  have  been  long  since 
absorbed  into  the  common  law  of  the  land. 

9.  General  Considerations. —  The  study  of  maritime  law  has 
the  double  attraction  of  historical  and  practical  interest.  It  deals 
with  the  legal  affairs  of  one  of  the  most  important  phases  of 
modern  commercial  activity  and  its  problems  are  solved  by 
precedents  from  a  remote  past.  It  is  not  a  law  which  is  con- 
fined within  the  narrow  circle  of  the  present  or  the  limits  of  par- 
ticular countries.  It  is  ancient  and  international.  At  a  time 
when  this  country  is  on  the  threshold  of  a  revival  of  its  merchant 
marine,  and  when  there  is  also  a  general  feeling  that  it  is  neces- 
sary to  proceed  to  a  constructive  readjustment  and  restatement 
of  our  entire  body  of  law,  the  law  of  the  sea,  which  is  really  part 


MARITIME  LAW  7 

of  the  law  merchant,  must  not  be  neglected.  The  present  is  im- 
perfectly understood  when  the  past  is  forgotten  and  it  is  difficult 
to  appreciate  any  rule  without  considering  its  origin.  Maritime 
law  is  not  an  exception.  Its  story  presents  all  the  attractions 
which  incline  the  student  to  the  study  of  history.  It  is  profitable 
to  follow  here,  as  in  politics,  the  development  of  ideas  and  cus- 
toms, the  efforts  to  accommodate  the  necessities  of  commerce  by 
sea  to  those  of  the  land,  the  methods  of  regulating  the  varied  in- 
terests on  shipboard  and  those  between  the  shipowner  and  the 
ship's  company,  and  the  experiments  towards  ameliorating  the 
age-long  friction  between  the  capitalist  who  supplied  the  ship  and 
those  who  labored  in  her  navigation.  Through  it  all  appears  a 
constant  search  for  justice,  a  sincere  effort  to  accomplish  what  is 
right  and  fair  for  all  concerned.  }  ♦ 

Here  'one  may  trace,  for  example,  the  rule  of  general  average, 
the  doctrine  that  what  is  sacrificed  for  the  common  benefit  shall 
be  compensated  by  a  common  contribution,  a  rule  of  such  plain 
and  simple  equity  that  the  failure  of  other  codes  to  adopt  it  is  a 
constant  surprise.  It  appears  in  a  fragment  of  Greek  legislation 
and  forms  the  text  for  a  chapter  in  the  Digest  of  Justinian.  Its 
antecedents  were  probably  Phoenician.  It  survived  the  Roman 
Empire  in  the  traditions  of  seafaring  men  and  reappears  in  the 
compilation  of  sea  laws  which  Coeur-de-Lion  revised  on  his  return 
from  the  Holy  Land,  the  Rolls  or  Judgments  of  Oleron.  The 
Black  Book  of  the  admiralty  preserves  it  in  London.  It  may  be 
traced  through  the  Middle  Ages  down  to  the  York-Antwerp 
Rules  of  1890  and  the  practice  of  adjusters  of  the  present  day. 

Or  one  may  consider  the  treatment  of  employer's  liability  for 
injuries  received  in  the  course  of  the  employment  without  his 
personal  fault.  Is  vicarious  liability  the  true  test  or  the  doctrine 
of  fellow  service?  The  merchants  of  the  Mediterranean  had  the 
problem  in  the  operations  of  a  very  large  and  extended  commerce 
and  the  maritime  law  evolved  the  doctrine  that  justice  requires 
that  one  injured  in  the  service  of  the  ship  should  be  cured  at  the 
expense  of  the  ship,  and  have  his  wages  but  no  more.  The  last 
word  on  the  real  equity  of  this  solution  of  a  perplexing  economic 
question  remains  to  be  said,  perhaps,  but  the  student  can  trace  its 
development  and  application  through  many  centuries  down  to 
the  current  decisions  of  our  own  Supreme  Court. 

On  no  other  branch  of  law  have  tradition  and  custom  exercised 


8  THE  LAW  OF  THE  SEA 

a  greater  influence.  It  grew  out  of  the  necessities  of  navigation 
and  commerce  by  sea  and  remains  substantially  uniform  in  spite 
of  forms  of  government,  racial  habits  and  local  innovations.  In 
its  essence,  it  is  less  susceptible  of  statutory  modification  than 
the  common  law  and  careless  legislation  has  had  only  local  effects, 
diverting  business  into  other  channels  but  inefifective  to  change 
the  substance  of  the  law.  Maritime  commerce  is  naturally  free 
and  the  wisest  commercial  governments  are  those  which  regulate 
it  least.  Its  freedom  is  a  direct  implication  from  the  doctrine 
of  the  natural  freedom  of  the  seas.  The  extent  to  which  gov- 
ernments may  profitably  regulate  it  without  impairing  its  useful- 
ness or  diverting  the  current  to  other  shores  may  be  found  in  the 
history  of  this  law.  Underlying  principles  are  the  same  whether 
ships  move  by  sail  or  steam  or  electricity  or  are  great  or  small. 
There  have  been  large  vessels  before  the  twentieth  century  and 
an  equivalent  commerce.  The  law  has  j-emained  the  same.  Men 
pay  damages  every  day  in  some  of  our  ports  for  overlooking 
rules  that  were  current  in  Roman  times  and  needless  litigation  is 
carried  through  appellate  courts  because  of  professional  and 
judicial  failures  adequately  to  investigate  the  underlying  princi- 
ples of  the  maritime  law. 

The  opportunities  for  the  student  are  large  and  inviting.  If 
this  country  is  to  do  its  part  in  the  commerce  of  the  future,  its 
own  maritime  laws  must  be  restated  and  reformed.  This  means 
not  only  the  formal  statutes  and  department  regulations  but  also 
the  great  mass  of  judicial  opinions  of  more  than  a  hundred  years. 
All  are  intertwined  with  each  other  and  the  result  is  chaotic. 
The  fault  has  not  been  in  the  underlying  principles  of  the  mari- 
time law  but  in  legislation  and  interpretation.  Our  peculiar 
system  has  left  the  final  word  in  the  majority  of  decisions  to 
judges  trained  in  the  common  law  and  not  professionally  ac- 
quainted with  any  other.  The  result  calls  for  the  treatment  which 
Justinian  administered  to  the  incongruous  compilations,  statutes 
and  reports  of  his  time.  The  student,  either  of  business,  history 
or  law,  who  will  apply  himself  to  an  investigation  of  the  law  of 
the  sea  and  ascertain  its  simple  fundamentals  will  not  only  have 
an  interesting  and  profitable  occupation  but  also  be  in  a  position 
to  contribute  substantially  to  the  public  welfare. 


MARITIME  LAW  9 

REFERENCES  FOR  GENERAL  READING 

The  American  Admiralty,  Chapters  I-XII,  E.  C.  Benedict.     Albany, 

N.  Y.,  1910;  Banks  &  Company. 
Maritime  Law,  Chapters  I-II,  Henry  Flanders.     Boston,  1852;  Little, 

Brown  &  Co. 
Ccnnmentarics  on  American  Law  (13th  ed.),  Lectures  XLV-XLIX, 

James  Kent.     Boston,  1884. 
Marine  Insurance,  Introduction  1-55,  John  Duer.     New  York,  1845; 

Voorhies. 
Introduction    historiqnc    a    I'ctude    du    droit    commercial    maritime, 

Arthur  Desjardins.     Paris,   1890;  A.  Durand  et  Pedone-Lauriel. 
Maritime  Law,   Albert    Saunders.     London,    1901 ;    Sweet   Maxwell, 

Ltd. 
The  Rhodian  Sea-Law,  Walter  Ashburner.     Oxford,  1909;  The  Clar- 
endon Press. 
History  of  Admiralty  Jurisdiction,  R.  H.  Dana.     5  American  Law 

Review  581. 


CHAPTER  II 
TITLE  AND  TRANSFER 

1.  How  Title  Acquired. —  Title  to  a  ship  is  acquired  in  the 
same  ways  as  other  personal  property,  by  construction,  purchase, 
gift  or  exchange.  It  may  pass  by  delivery,  without  any  bill  of 
sale  or  other  written  document.  This  method,  however,  is  neither 
advisable  nor  practicable  where  the  value  is  substantial  or  active 
business  is  contemplated.^ 

2.  Registration  and  Regulation. —  The  United  States,  like 
other  commercial  countries,  provides  a  complete  system  for  the 
registry  and  regulation  of  all  ships  entitled  to  the  privileges  of 
American  vessels.  These  laws  do  not  require  registry  or  enroll- 
ment unless  such  privileges  are  desired.  The  owner  may  acquire 
and  dispose  of  his  boat  without  reference  to  them,  but,  until  it  is 
registered  or  enrolled,  it  is  not  a  vessel  of  the  United  States  and 
cannot  engage  in  any  trade. 

It  is  therefore  usual  to  have  all  matters  in  relation  to  the  title 
and  transfer  of  a  ship  in  writing  and  according  to  customary 
forms.     This  is  a  safe  and  salutary  rule. 

3.  Shipbuilding  Contracts. —  The  builder  of  a  ship  is  the 
first  owner  unless  there  is  a  special  contract  under  which  he  merely 
performs  labor  upon  materials  which  the  other  party  supplies. 
This  is  unusual.  The  shipbuilder  generally  constructs  the  vessel 
upon  an  order  or  contract,  which,  if  properly  drawn,  provides  for 

1  Rev.  St.,  §  4170,  is  as  follows: 

"  Whenever  any  vessel,  which  has  been  registered,  is,  in  whole  or  in 
part,  sold  or  transferred  to  a  citizen  of  the  United  States,  or  is  altered  in 
form  or  burden,  by  being  lengthened  or  built  upon,  or  frorn  one  denomi- 
nation to  another,  by  the  mode  or  method  of  rigging  or  fitting,  the  vessel 
shall  be  registered  anew,  by  her  former  name,  according  to  the  directions 
hereinbefore  contained,  otherwise  she  shall  cease  to  be  deemed  a  vessel  of 
the  United  States.  The  former  certificate  of  registry  of  such  vessel  shall 
be  delivered  up  to  the  collector  to  whom  application  for  such  new  registry 
is  made,  at  the  time  that  the  same  is  made,  to  be  by  him  transmitted  to 
the  Register  of  the  Treasury  who  shall  cause  the  same  to  be  canceled. 
In  every  such  case  of  sale  or  transfer  there  shall  be  some  instrument  of 
writing,  in  the  nature  of  a  bill  of  sale,  which  shall  recite  at  length,  the  cer- 
tificate ;  otherwise  the  vessel  shall  be  incapable  of  being  so  registered  anew." 

This  is  discussed  in  §  10,  infra,  this  chapter. 

10 


TITLE  AND  TRANSFER  u 

the  time  when  the  title  shall  pass  away  from  him.  Such  con- 
tracts should  be  explicit  in  their  details,  especially  as  to  the  terms 
of  payment  and  state  of  the  title  as  the  work  goes  on.  Otherwise, 
the  title  may  remain  in  the  builder  until  delivery;  if  so,  and  the 
vessel  be  injured  or  destroyed,  it  will  be  his  loss ;  or,  if  he  becomes 
bankrupt  before  delivery,  the  vessel  may  be  appropriated  by  his 
general  creditors  in  spite  of  the  fact  that  the  purchase  price  may 
have  been  largely  paid. 

In  the  United  States  v.  Ansonia  Co.,  218  U.  S.  452,  a  ship- 
builder in  Richmond,  Va.,  became  insolvent  while  engaged  in  con- 
structing three  vessels  for  the  government ;  one  war  dredge  for 
the  War  Department ;  one  a  revenue  cutter  for  the  Treasury 
Department ;  and  the  third  a  cruiser  for  the  Navy.  In  each  in- 
stance the  shipbuilder  was  to  furnish  the  labor  and  materials  and 
perform  the  work  and  was  to  receive  partial  payments  from  time 
to  time  as  the  construction  progressed.  In  the  case  of  the  dredge, 
the  contract  provided  that  the  parts  of  the  vessel  as  its  construc- 
tion progressed  should  become  the  sole  property  of  the  United 
States,  although  it  was  further  provided  that  the  government 
might  subsequently  reject  defective  work  or  parts  and  might  even 
reject  the  completed  vessel,  should  it  fail  to  pass  inspection.  The 
contracts  for  the  revenue  cutter  and  cruiser,  on  the  other  hand, 
contained  no  provision  for  the  passing  of  title  before  completion, 
but  did  provide  that  the  government  should  have  a  superior  lien 
upon  the  vessels  for  all  payments  made  on  account.  The  Su- 
preme Court  (Day,  J.)  said: 

It  is  undoubtedly  true  that  the  mere  facts  that  the  vessel  is  to  be 
paid  for  in  installments  as  the  work  progresses,  and  to  be  built  under 
the  superintendence  of  a  government  inspector,  who  had  the  power 
to  reject  or  approve  the  materials,  will  not  of  themselves  work  the 
transfer  of  the  title  of  a  vessel  to  be  constructed,  in  advance  of  its 
completion.  But  it  is  equally  well  settled  that  if  the  contract  is  such 
as  to  clearly  express  the  intention  of  the  parties  that  the  builder  shall 
sell  and  the  purchaser  shall  buy  the  ship  before  its  completion,  and 
at  different  stages  of  its  progress,  and  this  purpose  is  expressed  in 
the  words  of  the  contract,  it  is  binding  and  effectual  in  law  to  pass 
the  title. 

The  court  further  held  that  the  lien  reserved  in  the  contracts 
for  the  revenue  cutter  and  cruiser  was  not  superior  to  the  hens 
of  material  men  under  the  laws  of  Virginia. 


12  THE  LAW  OF  THE  SEA 

4.  Not  Within  Admiralty  Jurisdiction. —  Until  the  vessel  is 
launched  and  completed  she  is  not  within  the  jurisdiction  of  the 
maritime  law  but,  like  any  other  piece  of  construction,  is  subject 
to  the  local  laws  of  the  State  wherein  the  work  is  carried  on. 
The  Admiralty  courts  of  the  United  States  decline  jurisdiction 
of  all  contracts  for  the  building  of  a  ship. 

5.  Enrollment  and  Registration. —  When  the  ship  is  com- 
pleted, she  should  be  registered  or  enrolled  as  an  American  ves- 
sel. These  words  are  synonymous;  vessels  in  the  foreign  trade 
are  "  registered  "  and  those  in  the  domestic  or  coastwise  trade 
are  "enrolled";  (The  Mohawk,  3  Wall.  566;  Huus  v.  Co.,  182 
U.  S.  392,  395).  Vessels  of  less  than  twenty  tons  and  more  than 
five  tons  are  neither  registered  or  enrolled  but  should  be  licensed. 

6.  Ships  Entitled  to. —  This  proceeding  is  accomplished  at  the 
office  of  the  collector  of  customs  of  the  district  in  which  the  home 
port  of  the  vessel  may  be  (Rev.  St.  §4141.  Morgan  v.  Parham,  16 
Wall.  471).  The  home  port  is  the  port  at  or  nearest  which  the 
owner,  or  managing  owner,  resides.  The  registration,  enrollment 
and  licensing  of  vessels  is  fully  covered  by  Regulations  orig- 
inally promulgated  by  the  Secretary  of  the  Treasury  under  the 
navigation  laws  of  the  United  States,  which  may  now  be  obtained 
in  revised  form  by  application  to  the  Department  of  Commerce  at 
Washington. 

Ships  entitled  to  such  registration  or  enrollment  are: 

1.  Vessels  built  in  the  United  States  and  owned  by  a  citizen. 

2.  Vessels  captured  in  war  and  condemned  as  prize,  and  owned  by 
a  citizen. 

3.  Vessels  forfeited  and  sold  for  breach  of  the  laws  of  the  United 
States  and  purchased  and  owned  by  a  citizen. 

4.  Seagoing  vessels  whether  steam  or  sail  which  have  been  certified 
by  the  Steamboat  Inspection  Service  as  safe  to  carry  dry  and  perish- 
able cargo,  wherever  built,  which  are  to  engage  only  in  trade  with 
foreign  countries,  being  wholly  owned  by  citizens  of  the  United  States 
or  corporations  organized  and  chartered  therein,  the  president  and 
managing  directors  and  the  holders  of  the  control  of  which  shall  be 
citizens  of  the  United  States;  also  vessels  answering  the  foregoing 
description  which  are  to  trade  with  the  Islands  of  Guam  and  Tutuila 
until  February  i,  1922,  and  thereafter  as  governed  by  Sec.  21  of  the 
Merchant  Marine  Act  (see  Appendix). 

5.  Vessels  wrecked  in  the  United  States,  and  purchased  and  re- 
paired by  a  citizen,  if  the  cost  of  the  repairs  is  equal  to  three  times 
the  appraised  value  of  the  wreck  as  salved. 


TITLE  AND  TRANSFER  13 

6.  Vessels  of  the  United  States  Shipping  Board  sold  to  a  citizen  of 
the  United  States. 

7.  Steamboats  employed  in  a  river  and  bay  of  the  United  States  and 
owned  wholly  or  in  part  by  an  alien  resident  within  the  United  States. 

8.  Yachts  owned  by  citizens  and  employed  exclusively  for  pleasure. 
These,  although  foreign  built,  may  be  licensed  to  proceed  from  one 
domestic  port  to  another  so  long  as  they  do  not  trade  or  carry  pas- 
sengers. 

7.  Incidents  of  Enrollment  or  Registration. —  The  law  pro- 
vides that  vessels  registered  pursuant  to  law  and  no  others  (ex- 
cept those  quahfied  according  to  law  for  carrying  on  the  coasting 
or  fishing  trade)  shall  be  deemed  vessels  of  the  United  States 
and  entitled  to  tlie  benefits  and  privileges  pertaining  to  such  ves- 
sels. When  a  vessel  ceases  to  be  wholly  owned  by  citizens  of  the 
United  States  or  a  corporation  created  under  the  laws  of  the 
United  States,  control  of  which  is  held  by  citizens,  or  ceases  to  be 
commanded  by  a  citizen  of  the  United  States,  she  forfeits  her 
rights,  benefits  and  privileges  of  a  vessel  of  the  United  States. 
Pilots  and  officers  having  charge  of  a  watch  must  be  citizens  of 
the  United  States. 

A  capital  distinction  to  be  borne  in  mind  is  that  between  vessels 
entitled  to  engage  in  coastwise  trade  and  those  not  so  entitled. 
No  vessel  of  foreign  registry  may  engage  in  that  trade.  No 
foreign-built  vessel  of  American  registry,  with  certain  exceptions,^ 
may  engage  in  that  trade  under  penalty  of  a  fine,  although  it  is 
within  the  power  of  the  Secretary  of  Commerce  to  waive  the  im- 
position of  such  fine,  and  this  has  sometimes  been  done  where  an 
emergency  arising  out  of  exceptional  circumstances  has  made  it 
necessary  for  an  unauthorized  vessel  to  trade  between  ports  of 
the  United  States.  Vessels  entitled  to  engage  in  the  coastwise 
trade  are  those  which,  being  built  within  and  owned  by  citizens 
of  the  United  States,  are  enrolled  for  that  trade.  Vessels  owned 
by  corporations  may  not  engage  in  the  coasting  trade  unless  75 
per  cent,  of  the  interest  therein  is  owned  by  citizens. 

The  coasting  trade  consists  of  trade  between  continental  ports 
of  the  United  States,  either  directly  or  by  way  of  a  foreign  port  ; 
that  is  to  say,  if  you  depart  from  New  York  with  merchandise 

2  The  exceptions  are  foreign-built  vessels  purchased  from  the  United 
States  Shipping  Board  and  foreign-built  wrecks  repaired  ni  the  United 
States  as  indicated  in  §  6,  supra,  this  chapter.  Also  all  foreign-built  ves- 
sels admitted  to  American  Registry,  owned  on  February  i,  1920,  by  citizens 
so  long  as  they  continue  to  be  so  owned. 


14  THE  LAW  OF  THE  SEA 

for  Miami,  you  are  trading  between  American  ports,  even  though 
you  may  touch  at  Bermuda  en  route.  The  test  is  whether  you 
trade  between  ports  of  the  United  States  as  part  of  a  single 
voyage,  irrespective  of  nationaHty  of  the  ship.  The  character  of 
the  voyage,  whether  foreign  or  domestic,  is  determined  by  its 
terminus  (Tabor  v.  U.  S.,  i  Story  i).  Thus  a  vessel  bound 
from  New  York  to  Yokohama,  via  San  Francisco,  would  be  upon 
a  foreign  voyage.  Such  a  vessel,  flying  a  foreign  flag,  could  not 
discharge  any  of  her  passengers  or  cargo  at  San  Francisco. 

Trade  between  the  east  and  west  coasts  via  the  Panama  Canal 
or  Cape  Horn  is  coastwise.  Trade  between  ports  of  the  United 
States  and  those  of  Hawaii,  Porto  Rico  and  Alaska  is  coasting 
trade,  though  the  Shipping  Board  may  issue  permits  to  foreign 
vessels  to  carry  passengers  between  Hawaii  and  the  Pacific  coast 
until  February  i,  1922.  Trade  between  ports  of  the  United 
States  and  those  of  the  Philippine  Islands  is  by  statute  not  coasting 
until  February  i,  1922.  Thereafter  it  is  governed  by  Sec.  21  of 
the  Merchant  Marine  Act,  which  will  be  found  in  the  Appendix. 
Trade  between  ports  of  the  United  States  and  those  of  the  Pan- 
ama Canal  Zone  is  not  coasting. 

By  the  coasting  trade  is  not  meant  the  mere  putting  in  of  a 
vessel  at  a  port  of  the  United  States  after  leaving  another  port 
for  bunkers  or  supplies  (which  is  not  forbidden)  but  trading  be- 
tween such  ports,  e.  g.,  the  carriage  of  cargo  and  passengers  from 
one  such  port  and  their  discharge  at  another. 

8.  How  Obtained. —  This  registration  or  enrollment  is  ob- 
tained by  proof  of  the  collector  that  the  vessel  was  built  within 
the  United  States,  or  otherwise  meets  conditions  mentioned;  and 
that  no  foreigner  is  interested  in  her  (Rev.  St.  §4142)  ;  her  size, 
characteristics  and  other  points  of  identification  are  shown  by 
certificates  of  the  master  carpenter  under  whose  direction  she 
was  built,  and  surveyors  appointed  for  the  purpose,  in  accordance 
with  R.  S.  4147-4153 ;  security  is  given  that  the  certificate  ob- 
tained shall  be  solely  used  for  the  ship,  and  thereupon  the  collec- 
tor issues  in  statutory  form  his  certificate  of  registration  or  en- 
rollment, as  the  case  may  be  (Rev.  St.  §§4155,  4319). 

The  title  to  the  ship  may  vest  in  one  or  more  individuals  or  a 
corporation.  In  either  case  the  residence  or  domicile  of  the  owner 
is  important.     The  law  considers  that  for  purposes  of  jurisdiction 


TITLE  AND  TRANSFER  15 

the  ship  is  a  part  of  the  territory  of  the  state  or  country  in  which 
the  owner  resides,  and  she  continues  for  many  purposes  to  be 
subject  to  its  laws  wherever  she  sails  (Crapo  v.  Kelly,  16  Wall. 
610;  The  Hamilton,  207  U.  S.  398). ^  In  the  case  of  Crapo  v. 
Kelly,  just  cited,  the  ship  Arctic,  registered  at  Fairhaven,  Massa- 
chusetts, belonged  to  a  firm  of  owners,  residing  and  doing  busi- 
ness in  that  state,  who  had  become  insolvent.  The  insolvent 
court  of  Massachusetts  undertook  to  include  the  vessel  among 
the  assets  of  the  owners  within  its  jurisdiction,  for  the  benefit  of 
creditors.  The  vessel  arrived  at  New  York  and  was  attached  by 
a  creditor  of  the  owners  residing  there.  Upon  extended  consider- 
ation, the  Supreme  Court  held: 

This  vessel,  the  Arctic,  was  upon  the  high  seas  at  the  time  of  the 
assignment  (for  the  benefit  of  creditors).  The  status  at  that  time 
decides  the  question  of  jurisdiction.  .  .  .  We  hold  that  she  was  sub- 
ject to  the  disposition  made  by  the  laws  of  Massachusetts  and  that 
for  the  purpose  and  to  the  extent  that  title  passed  to  the  assignees, 
the  vessel  remained  a  portion  of  the  territory  of  that  state. 

The  ship's  registry  or  enrollment,  therefore,  fixes  her  home 
port  and  she  will  be  considered  as  belonging  to  the  state  in  which 
such  port  is  located  and  as  foreign  to  all  other  states  and  coun- 
tries. Ordinarily  she  is  liable  to  taxation  as  personal  property 
only  in  the  state  in  which  her  home  port  is  situated,  but  this  is 
subject  to  the  qualification  that  her  situs  as  personal  property  is, 
for  purposes  of  taxation,  governed  by  the  same  rules  applicable 
to  other  personal  eflfects.  The  general  rule  is  that  the  situs  of 
personal  property  is  the  domicile  of  the  owner,  and  a  ship  will  be 
liable  to  taxation  in  the  state  where  the  owner  resides,  irrespective 
of  the  location  of  her  home  port  as  shown  on  the  ship's  docu- 
ments. Thus  in  So.  Pac.  Co.  v.  Ky.,  222  U.  S.  63,  a  corporation 
organized  in  Kentucky,  owned  a  number  of  vessels  enrolled  at 
New  York.     They  were  held  taxable  in  Kentucky. 

The  law  further  requires  that  every  change  in  the  title,  com- 

3  While  a  vessel  is  part  of  the  territory  of  her  home  jurisdiction  for 
jurisdictional  purposes,  the  doctrine  of  her  territoriality  does  not  extend 
to  treating  her  as  part  of  the  soil  for  all  purposes.  Thus  the  Supreme 
Court  has  held  that  foreign  seamen  brought  to  the  United  States  to  work 
on  an  American  ship  engaged  in  foreign  commerce,  were  not  engaged  "  to 
perform  labor  within  the  United  States  "  within  the  meaning  of  the  con- 
tract labor  law.     (Scharrenberg  v.  Dollar  S.  S.  Co.,  245  U.  S.  122.) 


i6  THE  LAW  OF  THE  SEA 

mand  or  structure  of  the  ship  shall  be  promptly  reported  and 
placed  for  record  in  the  Collector's  office,  so  that  at  any  time  her 
present  status,  the  name  of  her  commander  and  entire  past  history 
may  be  fully  shown  upon  its  books,  and  the  Collector  will  furnish 
on  request  an  abstract  of  the  title  which  his  records  disclose.  This 
abstract,  of  course,  becomes  important  whenever  the  ship  is  sold 
or  used  as  security,  although  it  will  not  show  anything  in  regard 
to  maritime  liens  upon  it  since  these  are,  in  their  nature,  secret. 
Under  present  practice  the  owners  of  a  ship  usually  incorporate. 
Such  corporations  take  the  complete  title  and  are  treated  as  the 
sole  owner  in  all  respects.  There  is  nothing  in  the  admiralty 
law  which  differentiates  corporations  from  other  owners.  It  is 
also  popular  to  incorporate  as  "  single  ship  companies  "  and  in 
this  way  a  double  protection  against  liabilities  in  excess  of  the 
amount  invested  may  be  obtained. 

9.  Recording  of  American-built  Foreign  Ships. —  Vessels  of 
foreign  ownership  built  in  the  United  States  may  be  measured  and 
recorded  in  the  office  of  the  Collector  for  the  district  in  which  they 
are  built  and  a  certificate  of  record  issued.  The  advantage  of  hav- 
ing this  is  in  having  the  official  record  already  made  in  case  the 
vessel  subsequently  becomes  the  property  of  citizens  aiKl  entitled 
to  registry.  Changes  of  name  and  master  of  recorded  vessels 
must  be  endorsed  on  the  certificate  of  record  and  reported  to  the 
Collector  at  the  port  of  record  (Rev.  St.  §§4180-4184). 

10.  Name. —  A  new  vessel  is  registered  under  the  name  selected 
by  her  owners  and  must  continue  to  bear  that  name  —  which  is 
required  to  be  painted  upon  her  bows,  stern,  pilot  house  and  life- 
boats in  letters  of  specified  size, —  unless  permitted  to  change  it. 
By  Act  of  Congress  approved  February  19,  1920,  changes  of 
name  may  be  made  by  the  Commissioner  of  Navigation,  United 
States  Department  of  Commerce,  '*  when  in  his  judgment  there 
shall  be  sufficient  cause  for  so  doing."  Before  authorizing  a 
change  of  name,  the  Commissioner  requires  "  such  evidence  as 
to  age,  condition,  where  built,  and  pecuniary  liability  of  the  ves- 
sel as  may  be  deemed  necessary  to  prevent  injury  to  public  or 
private  interests,"  including  the  interests  of  the  vessel's  creditors. 
The  purpose  of  these  requirements  is  to  prevent  imposition  upon 
the  public  by  masquerading  old,  worn-out  vessels  under  new 
names,  and  to  prevent  the  loss  of  a  vessel's  identity,  in  fraud  of 
her  creditors,  by  changing  her  name. 


TITLE  AND  TRANSFER  17 

11.  Sale. —  The  sale  of  a  ship  is  usually  evidenced  by  a  bill  of 
sale  on  a  government  form  which  will  be  furnished  by  the  col- 
lectors. It  is  essential  that  it  should  include  a  copy  of  the  last 
registry  or  enrollment  and  licenses,  executed  in  the  presence  of 
two  witnesses  and  acknowledged  before  a  notary  public.  Mort- 
gages may  be  made  upon  similar  forms  and  the  statute  provides 
that,  "  No  sale,  conveyance,  or  mortgage  which,  at  the  time  such 
sale,  conveyance,  or  mortgage  is  made,  includes  a  vessel  of  the 
United  States,  or  any  portion  thereof,  as  the  whole  or  any  part  of 
the  property  sold,  conveyed,  or  mortgaged  shall  be  valid,  in  respect 
to  such  vessel,  against  any  person  other  than  the  grantor  or  mort- 
gagor, his  heir  or  devisee,  and  a  person  having  actual  notice 
thereof,  until  such  bill  of  sale,  conveyance,  or  mortgage  is  recorded 
in  the  office  of  the  collector  of  customs  of  the  port  of  documenta- 
tion of  such  vessel."  (Ship  Mortgage  Act,  1920,  Subsection  C 
(a).  See  Appendix,  Merchant  Marine  Act,  1920,  §30.)  While 
a  prudent  man  will  invariably  evidence  the  sale  of  a  ship  by  a 
written  instrument,  this  is  not  essential  to  the  validity  of  the  sale, 
if  the  common  law  essentials  to  a  sale  of  personal  property  — 
delivery  or  payment,  in  whole  or  in  part,  or  both, —  are  present. 
The  requirement  of  the  statute  (Rev.  St.  §4170;  Ship  Mortgage 
Act  1920,  Subsection  H;  See  Merchant  Marine  Act  1920,  §30) 
that  a  bill  of  sale  be  given,  containing  a  copy  of  the  registry  or 
enrollment,  and  recorded  in  the  Collector's  Office,  is  for  the  pur- 
pose of  giving  notice  to  the  world  of  the  transfer.  Without 
these  formalities,  the  sale  is  valid  as  against  the  grantor  and  per- 
sons having  actual  notice  only ;  not  as  against  any  other  persons 
claiming  an  interest  in  the  ship.  If  an  American  vessel  be  sold 
to  an  alien  without  obtaining  the  Shipping  Board's  approval 
and  without  recording  the  transfer,  the  vessel  is  liable  for  for- 
feiture. 

12.  Transfer  of  Flag  and  Sales  to  Foreigners.— The  Mer- 
chant Marine  Act  of  June  5,  1920  (see  Appendix),  provides  that 
no  American  vessel  shall  be  sold  or  transferred  to  any  one  not  a 
citizen  or  placed  under  foreign  registry  without  obtaining  the  ap- 
proval of  the  Shipping  Board.  Any  vessel  transferred  in  viola- 
tion of  this  provision  is  subject  to  forfeiture  and  fine.  An 
American  vessel  may  not  be  sold  by  order  of  a  district  court  of 
the  United  States  in  a  suit  in  rem  in  admiralty  to  any  person  not 
an  American  citizen. 


i8  THE  LAW  OF  THE  SEA 

13.  Admiralty  Sales. — The  title  to  the  ship  may  also  be  trans- 
ferred by  a  sale  in  admiralty.     This  passes  a  new  and  complete 
title  to  the  purchaser  and  absolutely  frees  the  ship  from  all  ex- 
isting liens,  titles  or  encumbrances.     Such  a  sale  is  only  made  in 
the  course  of  a  suit  in  admiralty  against  the  ship  for  the  enforce- 
ment of  a  maritime  lien,  or  other  matter  within  the  jurisdiction 
of  the  court.     A  ship  which  passes  through  such  a  sale  becomes 
in  effect  an  absolutely  new  vessel  so  far  as  prior  title  or  encum- 
brances are  concerned,  and  all  previous  claims  are  relegated  to  the 
proceeds  in  the  registry  of  the  court  (The  Garland,  16  Fed.  283). 
The  Ship  Mortgage  Act,  1920  (§30  Merchant  Marine  Act,  Sub- 
section O),  which  creates  preferences  in  favor  of  certain  mort- 
gages, provides  that,  on  the  sale  in  admiralty  of  a  ship  upon  which 
there  has  existed  a  preferred  mortgage  the  court  shall,  on  request 
of  an  interested  party,  require  the  purchaser  at  the  judicial  sale 
to  give  a  new  mortgage  on  terms  similar  to  the  old  one  and,  if  such 
new  mortgage  is  given,  the  mortgagee  shall  not  be  paid  from  the 
proceeds  of  the  sale  and  the  amount  of  the  purchase  price  shall 
be  diminished  by  the  amount  of  the  new  mortgage.     It  is  essential 
that  the  court  should  have  full  and  complete  jurisdiction  to  make 
the  sale.     Such  sales  are  made  by  the  marshal  under  a  writ  issued 
in  a  pending  suit  in  admiralty ;  neither  the  officer  nor  the  court  war- 
rants anything  and  the  title  given  depends  wholly  upon  the  regu- 
larity of  the  proceedings  and  the  jurisdiction  of  the  court.     The 
essentials  are  simple  and  it  is  easy  to  ascertain  if  they  have  been 
complied  with.     For  example,  when  the  marshal  seizes  a  ship 
under  admiralty  process,  he  is  required  to  give  public  notice  of  the 
seizure  and  the  return-day  of  the  writ  in  order  that  all  the  world 
may  be  bound  by  the  proceeding.     This  is  accomplished  by  taking 
actual  possession  of  the  vessel,  posting  a  copy  of  the  writ  in  some 
conspicuous  place,  and  publishing  an  appropriate  notice  in  some 
newspaper   within   the    district.     Sometimes    this    publication   is 
omitted  or  deferred  to  a  later  stage  of  the  proceedings.     In  Gould 
V.  Jacobson,  58  Mich.  288,  the  results  of  such  an  omission  were 
fatal  to  the  title  of  the  purchaser  at  a  marshal's  sale  of  the  Pick- 
wick.    The  ship  had  been  seized  in  admiralty  and  sold  to  pay  her 
debts.     The  marshal  had  failed  to  publish  notice  of  the  seizure ;  the 
Court  held  that  the  sale  was  quite  void  and  that  replevin  would  lie 
in  favor  of  the  representatives  of  the  original  owner  against  the 
marshal's  vendee. 


TITLE  AND  TRANSFER  19 

14.  Sales  by  Trustees  and  Executors. —  These  will  only  trans- 
fer the  title  of  the  true  owner  if  the  conditions  of  the  trust  or 
power  given  by  the  will  are  strictly  observed.  The  rules  are  no 
different  than  in  sale  of  other  personal  property  and  create  no 
further  exemption  from  maritime  liens  or  other  encumbrances  than 
sales  by  ordinary  owners.     The  warranty  is  usually  less  sweeping. 

15.  Sales  by  Mortgagee. —  Foreclosures  of  vessel's  mortgages 
are  frequently  by  virtue  of  the  power  of  sale  contained  in  the 
instrument  and,  if  that  power  is  carefully  observed,  will  convey 
all  the  title  of  the  mortgagor. 

Until  the  enactment  of  the  Ship  Mortgage  Act  of  1920,  these 
proceedings  were  outside  of  admiralty  jurisdiction.  That  act 
made  substantial  changes,  not  only  in  the  status  of  mortgages  of 
American  ships,  but  in  the  manner  of  enforcing  them.  It  is  dis- 
cussed under  the  title  "  Mortgage  "  infra  and  is  printed  in  full  in 
the  Appendix  (Merchant  Marine  Act  1920,  §30). 

16.  Sales  by  Master. —  In  case  of  actual  necessity  the  master 
may  sell  the  ship  and  convey  a  good  title  to  the  purchaser,  free  of 
all  liens.  Such  sales  become  necessities  within  the  meaning  of  the 
maritime  law,  where  the  master  cannot  communicate  with  the 
owner  and  there  is  nothing  better  that  can  be  done  for  him  or 
the  others  concerned  in  the  adventure.  If  the  master  has  an 
honest  purpose  to  serve  those  who  are  interested  in  the  ship  and 
can  clearly  prove  that  the  situation  required  the  sale,  he  will  be 
entirely  justified  and  the  purchaser's  title  secure.  Good  faith 
and  necessity  must  concur.  If,  within  a  reasonable  time,  the 
master  can  consult  with  the  owner,  he  should  do  so,  because,  if 
possible,  the  owner's  judgment  must  control ;  and,  in  any  event, 
the  master  should  not  sell  without  the  advice  of  competent  persons 
on  the  spot,  whose  opinions  should  be  taken  as  to  whether  it  is 
better  judgment  to  repair  or  sell.  His  authority  does  not  depend 
on  their  recommendation,  but  if  he  acts  on  it,  his  justification 
will  be  the  more  secure.  Where  possible,  the  facts  should  be  pre- 
sented by  a  survey  of  the  ship  and  the  surveyors'  report  give  in 
detail  the  steps  they  take  and  their  conclusions,  with  the  facts 
necessary  to  vindicate  them.  When  a  vessel  is  lawfully  sold  by 
the  master  all  existing  liens  are  divested  and  an  absolute  title 
passes.  The  liens  attach  to  the  proceeds,  however,  which  become, 
in  the  view  of  the  maritime  law,  the  substitute  for  the  ship,  A 
good  title  will  pass  by  such  a  sale  even  if  no  bill-of-sale  is  ex- 


20  THE  LAW  OF  THE  SEA 

ecuted.  A  parole  sale — that  is  to  say,  a  sale  by  word  of  mouth, 
without  bill  of  sale  or  other  writing  —  and  delivery  will  effec- 
tually pass  the  property ;  while  formal  documents  are,  of  course, 
desirable  they  are  not  essential  to  its  validity. 

The  principles  governing  the  sale  of  a  vessel  by  her  master  are 
set  forth  very  clearly  by  Mr.  Justice  Davis,  in  delivering  the 
opinion  of  the  Supreme  Court  in  the  case  of  the  Amelie,  6  Wall. 
i8:  The  Amelie  on  her  voyage  from  Surinam  to  Boston  encoun- 
tered perils  of  the  sea,  and  was  obliged  to  seek  the  harbor  of  Port 
au  Prince,  Hayti,  and  was  sold  there  at  public  auction  by  the  mas- 
ter, and  purchased  by  Reviere,  the  claimant.  The  owner  of  the 
cargo,  because  of  its  non-delivery,  filed  a  libel  and  insisted  that  the 
sale  of  the  vessel  was  not  justifiable  and  passed  no  title  to  Reviere, 
the  claimant ;  and  even  if  the  sale  was  proper  under  the  circum- 
stances, that  Reviere  took  title  subject  to  all  existing  liens. 

The  sale  of  a  ship  becomes  a  necessity  within  the  meaning  of  the 
commercial  law,  when  nothing  better  can  be  done  for  the  owner,  or 
those  concerned  in  the  adventure.  ...  In  order  to  justify  the  sale, 
good  faith  in  making  it  and  the  necessity  for  it  must  both  concur, 
and  the  purchaser  to  protect  his  title  must  be  able  to  show  their  con- 
currence. The  question  is  not  whether  it  is  expedient  to  break  up  a 
voyage  and  sell  the  ship,  but  whether  there  was  a  legal  necessity  to 
do  it.  If  this  can  be  shown,  -the  master  is  justified;  otherwise  not. 
And  this  necessity  is  a  question  of  fact,  to-  be  determined  in  each  case 
by  the  circumstances  in  which  the  master  is  placed,  and  the  perils 
to  which  the  property  is  exposed. 

If  the  master  can  within  a  reasonable  time  consult  the  owners,  he 
is  required  to  do  it,  because  they  should  have  an  opportunity  to  decide 
whether  in  their  judgment  a  sale  is  necessary. 

At  this  point  it  may  be  observed  that  modern  means  of  com- 
munication by  cable  and  wireless  render  consultation  with  the 
owner  feasible  in  many  instances  where  it  was  not  formerly  pos- 
sible, and  there  can  be  no  doubt  that  it  is  the  master's  duty  to 
avail  himself  of  these  means  before  selling  the  vessel.  The  court 
proceeds : 

He  should  never  sell,  when  in  port  with  a  disabled  ship  without 
first  calling  to  his  aid  disinterested  persons  of  skill  and  experience, 
who  are  competent  to  advise,  after  full  survey  of  the  vessel  and  her 
injuries,  whether  she  had  better  be  repaired  or  sold.  And  although 
his  authority  to  sell  does  not  depend  on  their  recommendation,  yet, 
if  they  advise  a  sale,  and  he  acta  on  their  advice,  he  is  in  a  condition 


TITLE  AND  TRANSFER  21 

to  furnish  the  court  or  jury  reviewing  the  proceedings  strong  evi- 
dence in  justification  of  his  conduct. 

In  this  case  the  ship  was  surveyed  by  competent  surveyors,  who 
made  a  full  report  and  advised  that  the  vessel  be  sold  as  the  cost 
of  repairs  would  exceed  her  value.     The  court  continued : 

After  this  advice,  the  master  who  was  bound  to  look  to  the  interest 
of  all  parties  concerned  in  the  venture,  had  no  alternative  but  to  sell. 
In  the  face  of  it,  had  he  proceeded  to  repair  his  vessel,  he  would  have 
been  culpable.  Being  in  a  distant  port,  with  a  disabled  vessel,  seek- 
ing a  solution  of  the  difficulties  surrounding  him ;  at  a  great  distance 
from  his  owners,  with  no  direct  means  of  communicating  with  them; 
and  having  good  reason  to  believe  the  copper  of  his  vessel  was  dis- 
placed, and  that  worms  would  w^ork  her  destruction,  what  course  so 
proper  to  pursue  as  to  obtain  the  advice  "  of  that  body  of  men  who 
by  the  usage  of  trade  have  been  immemorially  resorted  to  on  such 
occasions?"  (Gordon  zk  Mass.  Ins.  Co.,  2  Pick.  264).  No  prudent 
man,  under  the  circumstances,  would  have  failed  to  follow  their  ad- 
vice, and  the  state  of  things,  as  proved  in  this  case,  imposed  on  the 
master  a  moral  necessity  to  sell  his  vessel  and  reship  his  cargo. 

It  is  insisted,  even  if  the  circumstances  were  such  as  to  justify  the 
sale  and  pass  a  valid  title  to  the  vendee,  he,  nevertheless,  took  the 
title  subject  to  all  existing  liens.  If  this  position  were  sound,  it 
would  materially  affect  the  interests  of  commerce,  for,  as  exigencies 
are  constantly  arising,  requiring  the  master  to  terminate  the  voyage 
as  hopeless,  and  sell  the  property  in  his  charge  for  the  highest  price 
he  can  get,  would  any  man  of  common  prudence  buy  a  ship  sold  under 
such  circumstances,  if  he  took  the  title  encumbered  with  secret  liens, 
about  which,  in  the  great  majority  of  cases,  he  could  not  have  the 
opportunity  of  learning  anything?  The  ground  on  which  the  right 
to  sell  rests  is,  that  in  case  of  disaster,  the  master,  from  necessity, 
becomes  the  agent  of  all  parties  in  interest  and  is  bound  to  do  the 
best  for  them  that  he  can,  in  the  condition  in  which  he  is  placed  and, 
therefore,  has  the  power  to  dispose  of  the  property  for  their  benefit. 
When  nothing  better  can  be  done  for  the  interests  of  those  concerned 
in  the  property  than  to  sell,  it  is  a  case  of  necessity,  and  as  the 
master  acts  for  all,  he  sells  as  well  for  the  lien  holder  as  the  owner. 
The  very  object  of  the  sale,  according  to  the  uniform  current  of  the 
decisions,  is  to  save  something  for  the  benefit  of  all  concerned;  and 
if  this  is  so,  the  proceeds  of  the  ship,  necessarily,  by  operation  of  law» 
stand  in  place  of  the  ship.  If  the  ship  can  only  be  sold  in  case  of 
necessity,  where  the  good  faith  of  the  master  is  unquestioned,  and 
if  it  be  the  purpose  of  the  sale  to  save  something  for  the  parties  in 
interest,  does  not  sound  policy  require  a  clean  title  to  be  given  the 
purchaser  in  order  that  the  property  may  bring  its  full  value?  If 
th^  sak  is  impeached,  the  law  imposest  on  the  purchaser  the  burderj. 


22  THE  LAW  OF  THE  SEA 

of  showing  the  necessity  for  it,  and  this  he  is  in  a  position  to  do, 
because  the  facts  which  constitute  the  legal  necessity  are  within  his 
reach;  but  he  cannot  know,  or  be  expected  to  know,  in  the  exercise 
of  reasonable  diligence,  the  nature  and  extent  of  the  liens  that  have 
attached  to  the  vessel.  Without  pursuing  ine  subject  further,  we  are 
clearly  of  the  opinion,  when  the  ship  is  lawfully  sold,  the  purchaser 
takes  an  absolute  title  divested  of  all  liens,  and  that  the  liens  are 
transferred  to  the  proceeds  of  the  ship,  which  in  the  case  of  the 
admiralty  law  becomes  the  substitute  for  the  ship. 

The  sale  in  this  case  vv^as  made  by  parole ;  the  master  delivered 
the  vessel  to  the  purchaser,  without,  so  far  as  appeared,  execut- 
ing any  document  evidencing  the  sale.  On  this  subject,  the  court 
said: 

The  title  of  Reviere,  the  claimant,  was  questioned  at  the  bar, 
because  he  did  not  prove  the  master  executed  to  him  a  bill  of  sale 
of  the  vessel.  We  do  not  clearly  see  how  this  question  is  presented 
in  the  record,  for  there  is  no  proof,  either  way,  on  the  subject,  but  if 
it  is,  it  is  easily  answered.  A  bill  of  sale  is  not  necessary  to  transfer 
the  title  to  the  vessel.  After  it  was  sold  and  delivered,  the  property 
was  changed  and  no  written  instrument  was  needed  to  give  effect  to 
the  title.  The  rule  of  common  law  on  this  subject  has  not  been 
altered  by  statute.  The  law  of  the  United  States  which  requires  the 
register  to  be  inserted  in  the  bill  of  sale  on  every  transfer  of  a 
vessel,  applies  only  to  the  character  and  privileges  of  the  vessel  as 
an  American  ship.     It  has  no  application  to  this  vessel  in  this  case. 

Sales  of  vessels  by  their  masters  are  less  common  now  than 
formerly  in  view  of  the  modern  facilities  for  communication  with 
owners.  H  such  sales  are  subject  to  the  restrictions  of  the  recent 
acts  of  Congress,  heretofore  mentioned,  it  would  appear  to  be 
practically  impossible  for  a  master  to  sell  an  American  ship  to 
a  foreigner.  Whether  such  sales,  arising  as  they  do,  ex  neces- 
sitate, under  the  general  principles  of  maritime  law,  are  to  be 
regarded  as  outside  of  the  provisions  of  these  statutes,  has  not 
been  decided.  There  is  no  reason  to  suppose  that  the  r-equirements 
of  the  statutes  are  suspended  in  such  cases. 

17.  Sale  of  Ship  at  Sea. —  Such  vessels  may  be  sold  or  mort- 
gaged by  delivery  of  a  proper  instrument  without  the  actual  pres- 
ence of  the  property  and  are  entirely  valid  if  possession  be  taken 
within  a  reasonable  time  after  it  comes  within  the  purchaser's 
reach.  The  new  owner  should  record  the  title  in  the  custom  house 
for  the  district  in  which  his  residence  is,  and  observe  all  the  re- 
quirements of  law  in  regard  to  a  new  registration  if  he  desires 


TITLE  AND  TRANSFER  23 

to  preserve  her  national  character.  To  be  safe,  until  the  vessel 
returns,  the  mortgage  of  a  ship  at  sea  should  be  recorded  at  the 
home  port,  as  shown  by  the  outstanding  document  as  well  as  at 
the  new  home  port. 

In  the  case  of  a  transfer  of  a  vessel  at  sea,  where  it  is  desired 
to  preserve  her  nationality,  it  is  necessary,  upon  her  arrival  at  her 
home  port,  to  deliver  up  her  certificate  of  registration  and  obtain 
a  new  certificate. 

In  the  case  of  United  States  z>.  Willings,  4  Cranch,  48,  a  share 
in  an  American  vessel  was  transferred  by  parole  while  she  was  at 
sea;  and,  before  she  reached  port,  was  re-transferred,  also  by 
parole,  to  the  original  owners.  The  government  challenged  her 
right  to  the  American  flag,  but  the  court  held  that  the  requirement 
that,  upon  transfer,  the  certificate  of  registery  be  surrendered,  did 
not  mean  that  the  ship  would  forfeit  the  flag  unless  such  surren- 
der were  contemporaneous  with  the  sale,  since  a  sale  may  be  made 
by  parole,  and,  inasmuch  as  the  ship  carries  her  papers  with  her, 
the  registration  could  not  be  attended  to  until  she  returned.  The 
Court,  speaking  through  Chief  Justice  Marshall,  held  that  the  ship, 
having  been  sold  at  sea  by  parole  and  bought  back  by  her  original 
owners,  also,  by  parole,  before  she  reached  port,  had  been  twice 
legitimately  sold  and  as  her  ownership  when  she  returned  was  the 
same  as  when  she  started,  her  nationality  remained  unchanged. 

18.  Appurtenances. —  A  bill  of  sale  or  mortgage  of  the  ship 
should  describe  the  interest  conveyed,  either  the  whole  or  a  frac- 
tional part,  and  include  the  appurtenances.  These  are  covered  by 
the  usual  phrase,  "  engines,  boilers,  machinery,  masts,  bowsprit, 
sails,  boats,  anchors,  cables,  and  all  other  necessaries  thereunto  ap- 
pertaining and  belonging."  Whatever  is  on  board  for  the  object 
of  the  voyage  and  belonging  to  the  owners  will  ordinarily  be  in- 
cluded, like  provisions,  supplies,  compasses,  chronometers  as  well 
as  new  articles  purchased  for  the  ship  but  not  yet  installed  on 
board.  As  in  other  cases  of  sales,  the  intention  of  the  parties, 
so  far  as  it  can  be  ascertained,  will  control  and  it  is  desirable  to 
have  an  inventory  of  separate  articles  in  order  to  avoid  misunder- 
standings or  disputes. 

ig.  Warranties  and  Representations. —  The  law  is  the  same  as 
in  other  cases  of  sales.  The  buyer  must  take  care.  The  seller 
must  not  deceive.  Material  representations  made  to  eflFect  the 
sale  are  equivalent  to  warranties.     If  the  ship  is  built  or  sold  for 


24  THE  LAW  OF  THE  SEA 

a  particular  purpose,  there  is  an  implied  warranty  of  fitness  for 
that  purpose.  If  the  contract  is  reduced  to  writing,  the  parole 
evidence  rule  will  control  as  to  prior  stipulations. 

REFERENCES  FOR  GENERAL  READING 

Shipping  and  Admiralty,  Parsons,  Vol.  I,  Chapter  IIL 

Commentaries,  Kent,  III,  Lecture  XLV. 

Sales,  Benjamin  (2d  Am.  ed.),  §§  33^339- 

White's  Bank  v.  Smith,  7  Wall.  646. 

Fleming  v.  Fire  Assoc,  147  Mich.  404. 

U.  S.  V.  Forester.  Newb.  Adm.  81. 

John  Jay,  17  How.  399. 

Admiralty,  Benedict,  §  158. 

Huus  V.  S.  S.  Co.,  182  U.  S.  392. 


CHAPTER  III 
OWNERS  AND  MANAGERS 

1.  Who  May  Be. —  The  owner  of  an  American  vessel  must  be 
a  citizen  of  the  United  States.  The  statutes  provide  that  "  Ves- 
sels registered  pursuant  to  law  and  no  others,  except  such  as  shall 
be  duly  qualified  according  to  law  for  carrying  on  the  coasting  or 
fishing  trade,  shall  be  deemed  vessels  of  the  United  States,  and 
entitled  to  the  benefits  and  privileges  appertaining  to  such  vessels ; 
but  no  such  vessel  shall  enjoy  such  benefits  and  privileges  longer 
than  it  shall  continue  to  be  wholly  owned  by  a  citizen  or  citizens 
of  the  United  States  or  a  corporation  created  under  the  laws  of 
any  of  the  States  thereof,  and  be  commanded  by  a  citizen  of  the 
United  States"  (7  Comp  St.,  1916  §7707).  Ownership  may  be 
shown  by  possession,  under  claim  of  title,  as  in  the  case  of  other 
personal  property,  but  the  best  evidence  is  the  formal  bill  of  sale, 
possession,  and  a  clean  abstract  of  title  from  the  records  of  the 
Collector  of  Customs  of  her  home  port.  All  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  its  jurisdiction, 
are  citizens  of  the  United  States  and  of  the  state  wherein  they 
reside.  Thus  minors,  married  women  (except  those  having  alien 
husbands),  persons  under  guardianship,  trustees,  and  corporations, 
like  other  citizens,  may  be  owners. 

2.  Part-Owners. —  The  ship  may  be  owned  in  shares  by  any 
number  of  individuals.  Such  part-owners  do  not  become  partners 
by  reason  of  such  ownership.  Each  has  a  separate  and  distinct 
interest  which  he  may  sell  or  dispose  of  without  the  consent  of 
the  others.  They  are  not  partners  in  the  absence  of  a  special 
agreement  to  that  effect.  Each  is  liable  for  only  his  own  pro- 
portion of  the  debts  and  none  is  responsible  for  the  acts  of  the 
others  beyond  the  amount  of  his  interest  in  the  ship,  unless  he 
has  himself  created  such  further  liability  directly  or  by  reasonable 
implication. 

Generally  speaking,  the  part-owners  of  a  ship  occupy  the  legal 
status  of  tenants  in  common.     They  may,  of  course,  become  part- 

25 


26  THE  LAW  OF  THE  SEA 

ners  and  subject  to  the  legal  incidents  of  partnership.  If  they  so 
agree,  or  if  they  act  in  such  a  manner,  they  assume  the  attributes 
of  partnership,  one  of  the  chief  of  which  is  the  liability  of  each 
individual  partner  for  the  entire  indebtedness  of  the  firm  (The 
Wm.  Bagaley,  5  Wall.  377). 

The  Daniel  Kaine,  35  Fed.  785,  was  a  contest  over  the  surplus 
remaining  in  the  registry  of  the  court  from  the  sale  of  a  tow-boat. 
This  had  been  allotted  to  the  several  part-owners  in  proportion 
to  their  shares,  but  the  master,  who  was  one  of  the  owners, 
claimed  a  lien  against  the  entire  fund  for  advances  made  by  him 
on  the  theory  that  the  owners  held  the  vessel  in  partnership  and 
not  merely  as  individual  coowners.     The  Court  said: 

The  burden  of  proof  is  upon  Captain  Cowan  to  establish  the  alle- 
gation contained  in  his  petition,  but  which  is  denied  in  the  answer 
thereto,  that  the  shareholders  in  the  Daniel  Kaine  were  not  tenants 
in  common  but  partners  in  respect  to  the  ownership  of  the  vessel. 
Has  he  succeeded  in  this?  The  evidence  bearing  upon  this  point  is 
as  follows :  The  boat  was  built  by  James  Lynn,  George  T.  Miller,  and 
R.  W.  Cowan,  who  from  the  first  held  her  in  defined  shares, —  Lynn 
and  Miller  each  owning  seven-eighteenths  and  Cowan  owning  four- 
eighteenths.  Thus  was  the  boat  enrolled  on  February  8,  1882, 
Speaking  of  her  enrollment,  Captain  Cowan  testifies :  "  There  was  no 
other  agreement  among  us  than  that  the  boat  should  be  as  set  out  in 
the  registry."  In  April,  1886,  George  T.  Miller  transferred  his 
seven-eighteenths  in  the  boat  to  George  B.  Kaine.  Captain  Cowan 
further  states  that  there  was  no  written  agreement  between  the 
owners  of  the  boat  as  to  how  she  was  to  be  operated,  nor  any  verbal 
agreement  that  she  was  to  be  run  or  operated  in  partnership.  How- 
ever, it  seems  that,  by  the  tacit  consent  of  all  the  owners,  she  was 
run  on  joint  account.  Her  employment  was  in  the  towing  of  coal, 
and  at  first  she  was  principally  engaged  in  towing  for  two  coal  firms, 
in  one  of  which  Lynn  was  a  member,  and  in  the  other  Miller,  viz., 
James  Lynn  &  Sons,  and  George  T.  Miller,  &  Co.  The  bookkeeper 
who  kept  the  books  of  the  boat  made  out  and  furnished  annually  to 
the  several  owners  balance  sheets,  in  which  the  cost  of  the  boat 
appeared  as  an  item.  Do  these  facts  establish  that  the  shareholders 
in  the  Daniel  Kaine  were  partners  in  her  ownership?  I  think  not. 
That  the  cost  of  the  boat  appeared  in  the  balance  sheets  which  the 
bookkeeper  made  out  is  not  a  controlling  circumstance,  and,  indeed, 
is  a  matter  of  little  moment,  when  considered  in  connection  with 
Captain  Cowan's  testimony,  above  quoted.  According  to  the  enroll- 
ment of  the  boat,  her  part  owners  were  tenants  in  common,  and 
there  was  no  different  or  other  agreement  as  to  ownership.  An 
agreement  to  run  a  ship  on  shares  does  not  make  the  owners  part- 


OWNERS  AND  MANAGERS  27 

ners  with  respect  to  the  vessel.     Says  Chief  Justice  Gibson  in  Hop- 
kins V.  Forsyth,  14  Pa.  St.  38: 

"  Carriers  may  doubtless  become  partners,  but  not  merely 

by  becoming  joint  owners  of  a  chattel,  and  using  it  for  a 

common  purpose.     And  the  principle  is  peculiarly  applicable 

to  ships  or  other  craft,  the  exceptions  to  it  in  respect  to  them 

being  always  founded  in  very  special  circumstances." 

Now,  where  the  vessel  is  not  partnership  property,  according  to  the 

clear  weight  of  authority  in  this  country,  one  part  owner  has  no  lien 

for  his  advances  and  disbursements  upon  the  share  of  his  co-owner. 

Nor  does  it  make  any  difference  that  the  part  owner  making  such 

advances  was  also  the  ship's  husband.     In  treating  of  this  subject, 

Mr.  Justice  Curtis,  in  the  case  of  the  Larch,  2  Curt.  434,  State,  after 

remarking  that  in  England  the  law  is  now  settled  against  the  existence 

of  the  lien,  said: 

"  There  has  been  some  diversity  of  decision  in  this  country, 
but  I  think  it  has  proceeded  from  diversity  in  the  views  taken 
of  the  particular  facts  of  the  cases,  rather  than  from  any 
real  difference  in  principles.  That  the  owners  of  a  vessel 
may  be  copartners  in  respect  to  that,  as  well  as  any  other 
property,  and  that,  when  they  are  so,  each  has  a  lien,  can 
not  be  doubted.  But  where  no  such  special  relation  exists, 
where  they  are  merely  part  owners,  and  as  such  tenants  in 
common,  that  one  has  no  lien  on  the  share  of  another  for 
advances,  I  believe  to  be  equally  clear." 

3.  Corporations. —  Corporations  organized  under  state  laws 
may  be  the  owners  of  American  vessels.  A  corporation  is  a  legal 
person  having  an  individuality  distinct  from  all  its  stockholders. 
It  is  the  corporation,  and  not  the  stockholders,  who  owns  the  cor- 
poration property.  For  that  reason  the  Attorney  General  has  ex- 
pressed the  opinion  (29  Op.  188)  in  a  case  in  which  a  vessel  was 
owned  by  a  corporation  of  the  State  of  New  York,  a  majority  of 
whose  stock  was  held  by  aliens  and  whose  directors  were  all  aliens, 
except  three,  that,  under  the  laws,  so  long  as  the  corporation  was 
legally  organized  and  existing  as  an  American  corporation  under 
the  laws  of  New  York,  a  vessel  owned  by  it  was  entitled  to  Amer- 
ican registry. 

It  is  unlawful,  without  obtaining  permission  of  the  Shipping 
Board,  to  place  under  foreign  registry,  a  vessel  owned  wholly  or 
in  part  by  an  American  corporation  or  to  transfer  such  vessel 
to  any  person  other  than  a  citizen  (Merchant  Marine  Act,  1920. 
See  Appendix),  and  within  the  meaning  of  that  act  no  corpora- 
tion is  deemed  a  citizen  unless  the  stock  control  and  management 


28  THE  LAW  OF  THE  SEA 

are  vested  in  individual  Americans.  To  enable  a  corporate-owned 
vessel  to  engage  in  the  coasting  trade,  75  per  cent  of  the  interest 
in  the  corporation  must  be  American  owned. 

4.  Majority  Interest. —  The  majority  interest  will  usually  con- 
trol, whether  the  title  is  in  a  corporation  or  individuals.  Thus 
the  majority  may  direct  or  change  the  employment  of  the  vessel, 
pledge  her  for  supplies  or  repairs,  and  employ  or  dismiss  the  mas- 
ter and  crew.  H  the  master  be  also  a  part-owner,  the  majority 
still  has  the  right  to  remove  him,  unless  there  is  a  valid  written 
agreement  to  the  contrary.  In  the  Orleans  ZK  Phoebus,  1 1  Peters, 
(U.  S.)  175,  it  appeared  that  Phoebus  was  master  and  owner  of 
one-sixth  of  the  steamboat  Orleans.  He  alleged  that  he  had  been 
dispossessed  by  the  owners  of  the  other  five  sixths,  who  were 
operating  the  vessel  against  his  wishes.  Speaking  for  the  Supreme 
Court,  Justice  Story  said: 

The  majority  of  the  owners  have  a  right  to  employ  the  ship  in 
such  voyages  as  they  may  please ;  giving  a  stipulation  to  the  dissent- 
ing owners  for  the  safe  return  of  the  ship,  if  the  latter,  upon  a 
proper  libel  filed  in  the  admiralty,  require  it.  And  the  minority  of 
the  owners  may  employ  the  ship  in  the  like  manner,  if  the  majority 
decline  to  employ  her  at  all. 

Similarly  Justice  Clifford,  in  The  Wm.  Bagaley,  5  Wall.  377: 

Even  where  the  part  owners  of  a  ship  are  tenants  in  common,  the 
majority  in  interest  appoint  the  master  and  control  the  ship,  unless 
they  have  s.urrendered  that  right  by  agreeing  in  the  choice  of  the 
ship's  husband  as  managing  owner. 

If  the  owner  be  a  corporation,  the  control  of  the  vessel  is  us- 
ually directed  by  the  Board  of  Directors,  as  in  the  case  of  other 
corporate  enterprises,  though  the  holders  of  a  majority  of  the 
capital  stock  may  determine  the  disposition  of  the  vessel  and  all 
matters  relating  to  her,  by  voting  their  stock  at  regular  or  special 
stockholders'  meetings,  called  in  accordance  with  the  company's 
charter  and  by-laws  and  the  laws  of  the  state  in  which  the  com- 
pany is  incorporated. 

5.  Minority  Interest. —  The  minority  interest,  where  the  major- 
ity sends  out  the  ship  against  its  wishes,  may  compel  the  majority 
to  give  a  bond  for  its  safe  return  or  the  payment  of  the  value  of 
its  interest.  This  may  be  obtained  through  a  court  of  admiralty. 
When  such  security  is  given  the  dissenting  owners,  they  are  not 


OWNERS  AND  MANAGERS  29 

entitled  to  compensation  for  the  use  of  their  shaies  or  to  any 
portion  of  the  profits.  In  the  same  way,  a  minority,  j;^esiring  to 
use  the  ship  against  the  majority  who  prefer  to  lay  her  up,  may 
obtain  her.  The  rule  was  thus  laid  down  by  Justice  Clifford  in 
The  Wm.  Bagaley,  5  Wall,  t;]"],  heretofore  cited : 

Admiralty,  however,  in  certain  cases,  if  no  ship's  husband  has  been 
appointed,  will  interfere  to  prevent  the  majority  from  employing  the 
ship  against  the  will  of  the  minority  without  first  entering  into  a 
stipulation  to  bring  back  the  ship  or  pay  the  value  of  their  shares. 
But  the  dissenting  owners  in  such  a  case,  bear  no  part  of  the  expenses 
of  the  voyage  objected  to,  and  are  entitled  to  no  part  of  the  profits. 
.  .  .  Unless  the  coowners  agree  in  the  choice  of  a  managing  owner 
or  the  dissenting  minority  go  into  admiralty,  the  majority  in  interest 
control  the  employment  of  the  ship  and  appoint  the  master. 

The  admiralty  practice  is  governed  by  the  old  maxim  that  "  ships 
were  made  to  plow  the  ocean,  and  not  to  rot  by  the  wall."  So, 
if  the  owners  be  evenly  divided  in  opinion,  the  party  desiring  to 
employ  the  ship  will  prevail,  on  giving  security  to  the  other.  In 
Willings  V.  Blight,  2  Pet.  Adm.  288;  30  Fed.  Cas.  No.  17765, 
decided  by  the  United  States  District  Court  for  the  Eastern  Dis- 
trict of  Pennsylvania  in  1800,  the  court  quaintly  expressed  the  law 
as  follows: 

It  is  a  principle  discernible  in  all  maritime  codes,  that  every  encour- 
agement and  assistance  should  be  afforded  to  those  who  are  ready 
to  give  their  ships  constant  employment;  and  this  not  only  for  the 
particular  profit  of  owners,  but  for  the  general  interests  and  pros- 
perity of  commerce.  If  agriculture  be,  according  to  the  happy  al- 
lusion of  the  great  Sully,  "  one  of  the  breasts  from  which  the  State 
must  draw  its  nourishment,"  commerce  is  certainly  the  other.  The 
earth,  parent  of  both,  is  the  immediate  foundation  and  support  of  the 
one,  and  ships  are  the  moving  powers,  instruments  and  facilities  of 
the  other.  Both  must  be  rendered  productive  by  industry  and  inge- 
nuity. The  interests  and  comforts  of  the  community  will  droop  and 
finally  perish  if  either  be  permitted  to  remain  entirely  at  rest.  The 
former  will  less  ruinously  bear  neglect,  and  throw  up  spontaneous 
products;  but  the  latter  require  unremitted  employment,  attention 
and  enterprise,  to  insure  utility  and  product.  A  privation  of  freight, 
the  fruit  of  the  crop  of  shipping,  seems  therefore  to  be  an  appropriate 
mulct  on  indolent,  perverse  or  negligent  part  owners.  The  drones 
ought  not  to  share  in  the  stores  acquired  and  accumulated  by  the 
labor,  activity,  foresight  and  management  of  the  bees.  Although 
the  hive  may  be  common  property,  it  is  destructively  useless  to  al^ 
if  not  furnished  with  means  of  profit  and  support  by  industry  and 


30  THE  LAW  OF  THE  SEA 

exertion;  which  should  be  jointly  applied  by  all  before  they  partici- 
pate in  beneficial  results.  Nor  should  the  idle  and  incompetent  be 
permitted  to  hold  it  vacant  and  useless  to  the  injury  and  ruin  of  the 
industrious  and  active. 

6.  Suits  between  Part-Owners. —  The  admiralty  will  some- 
times entertain  a  suit  for  partition  between  owners  who  can  not 
agree  and  sell  the  ship  for  the  purpose  of  dividing  the  proceeds. 
Generally  it  will  only  recognize  legal  titles,  that  is,  those  shown  by 
bills  of  sale  or  matters  of  record,  and  not  merely  equitable  claims 
of  ownership.  Part-owners  have  no  lien  against  each  other  where 
one  has  paid  more  than  his  share  of  the  debts  or  expenses  and 
therefore  can  not  proceed  against  the  ship  directly.  They  can, 
however,  have  an  accounting  in  equity  on  other  proceeding  in 
state  courts  for  the  purpose  of  adjusting  the  matter.  One  may 
sue  the  other  for  the  loss  of  the  vessel  by  negligence.  A  part- 
owner  may  have  a  lien  upon  the  ship  for  wages  or  other  maritime 
services,  subordinate,  however,  to  the  liens  of  strangers  to  the 
title.  Each  is  bound  to  pay  to  the  others  his  own  share  of  the 
expenses  of  the  ship  and,  in  the  absence  of  an  express  agreement 
to  the  contrary,  the  law  will  imply  a  promise  to  repay  an  excess 
advanced  by  one  over  his  share  on  which  an  ordinary  action  may 
be  brought  (Sheehan  v.  Dalrymple,  19  Mich.  239). 

7.  Authority  of  Owner. —  As  between  the  owner  and  the  mas- 
ter, the  former  is  supreme.  The  relation  is  one  of  agency  or  em- 
ployment and  the  master  must  obey.  The  owner  has  the  legal 
right  to  take  his  ship  from  the  custody  and  control  of  the  master,  at 
any  time,  and  in  whatever  place.  He  may  remove  him  at  pleasure, 
and  without  assigning  any  cause,  subject  only  to  the  ordinary 
responsibility  for  breach  of  contract  if  a  contract  be  broken.  This 
is  because  the  owner  is  very  deeply  concerned  in  who  is  master  of 
his  ship  and  is  so  highly  chargeable  with  his  conduct  that  it  is 
deemed  proper  that  he  should  be  permitted  to  dismiss  him  at  any 
time.  The  relation  is  a  confidential  one  and  can  not  be  forced  to 
continue  when  confidence  ceases. 

8.  Obligation  of  Owner. —  The  owner  is  bound  to  provide  a 
seaworthy  ship.  While  the  maritime  law,  in  order  to  encourage 
investments  of  capital,  endeavors  to  provide  certain  limitations  of 
liability,  the  obligation  of  seaworthiness  is  supreme  up  to,  at  least, 
the  amount  invested  in  the  ship.  Subject  only  to  a  possible  limi- 
tation of  liability,  the  owner  is  absolutely  bound  to  furnish  and 


OWNERS  AND  MANAGERS  31 

maintain  a  seaworthy  ship ;  this  obligation  is  analogous  to  that  of 
an  employer  on  land  to  furnish  a  safe  place  for  his  employees  or 
of  a  carrier  to  furnish  safe  and  roadworthy  means  of  transport. 

Seaworthiness  is  a  relative  term.  The  ship  must  be  fit  in  de- 
sign, structure,  condition  and  equipment  to  encounter  the  ordinary 
perils  of  the  voyage.  She  must  have  a  competent  master  and  a 
sufficient  crew.  Absolute  perfection,  of  course,  is  not  required; 
the  real  test  is  that  the  ship  shall  have  that  degree  of  fitness  which 
the  ordinary  careful  and  prudent  owner  requires  of  his  vessel  at 
the  commencement  of  the  voyage  in  view  of  all  the  circumstances 
which  may  attend  it. 

The  law  does  not  insist  that  the  shipowner  shall  in  person  at- 
tend to  all  his  duties  in  respect  of  the  ship.  It  recognizes  that 
most  of  these  must  be  met  by  agents.  It  contemplates  that  ship- 
owners may  avail  themselves  of  the  facilities  common  to  business 
men  and  be  relieved  whenever  they  have  properly  employed  com- 
petent agents  to  supervise  the  ship  at  sea  and  in  port.  In  most 
instances  where  the  maritime  law  may  be  appHed  the  owner  will 
not  be  responsible  beyond  his  interest  in  the  ship,  for  the  acts  or 
omissions  of  agents  whom  he  has  selected  with  due  care. 

9.  Liability  of  Owner. —  The  owner  is  liable  for  all  the  con- 
tracts and  negligence  of  the  master  up  to,  at  least,  the  value  of 
his  interest  in  the  ship.  In  most  cases,  he  may  limit  his  liability 
to  such  value  by  abandoning  the  ship  to  the  creditors.  This  is  an 
underlying  doctrine  of  the  general  maritime  law  and  generally 
carried  forward  into  the  statutes  of  all  maritime  countries.  There 
is  a  general  exception,  however,  in  regard  to  sailors'  wages.  The 
owner  remains  absolutely  liable  for  these  and  cannot  limit  against 
them.  He  is  also  liable  for  all  his  personal  contracts  in  regard  to 
the  ship  as  well  as  for  his  personal  negligence.  He  will  not  be 
liable  for  the  contracts  or  torts  of  the  master  outside  of  the  scope 
of  his  employment,  as  on  a  bill-of-lading  for  cargo  never  received 
on  board  or  an  unauthorized  assault  on  a  passenger. 

An  illustration  of  the  liability  of  the  owner  for  contract  of  the 
master  within  the  scope  of  his  employment  is  to  be  found  in  a 
case  in  which  the  master  contracted  for  extra  pilotage.  As  the 
United  States  District  Court  remarked  in  the  Cervantes,  135  Fed. 
573,  "  In  pilotage  cases  resort  may  be  had  to  the  vessel  or  the 
owner  or  the  master." 

The  case  of  Chamberlain  v.  Ward,  21  How.  548,  illustrates 


32  THE  LAW  OF  THE  SEA 

the  liability  of  an  owner  for  the  tort  of  the  master.  It  grew  out 
of  a  collision  in  Lake  Erie  and  was  an  action  in  admiralty  brought 
in  personam  by  the  owners  of  one  of  the  vessels  against  the  own- 
ers of  the  other  for  damages,  alleging  the  negligent  operation  of 
the  respondents'  vessel.     The  Supreme  Court  (Clifford,  J.)  held: 

Owners  of  vessels,  and  especially  those  who  own  and  employ  steam- 
ships, whether  propellers  or  sidewheel  steamers,  must  see  to  it  that 
the  master  and  other  officers  intrusted  with  their  control  and  man- 
agement are  skillful  and  competent  to  the  discharge  of  their  duties, 
as,  in  case  of  a  disaster  like  the  present,  both  the  owners  and  the 
vessels  are  responsible  for  their  acts,  and  must  answer  for  the  con- 
sequence of  their  want  of  skill  and  negligence;  and  this  remark  is 
just  as  applicable  to  the  under  officers,  whether  mate  or  second  mate, 
as  to  the  master,  during  all  the  time  they  have  charge  of  the  deck. 
That  the  mate  in  this  case  was  substantially  without  experience  in 
navigating  steamers,  and  utterly  destitute  of  the  requisite  informa- 
tion to  fit  him  to  determine  the  proper  courses  of  the  voyage,  are 
facts  so  fully  proved  that  it  is  difficult  to  regard  them  as  the  proper 
subjects  for  dispute;  and  what  is  more,  the  master  knew  his  unfit- 
ness when  he  started  on  the  voyage,  and  stated  before  the  vessel  left 
Cleveland,  to  the  effect  that  he  was  afraid  he  was  going  to  be  sick, 
and  that  he  had  no  confidence  in  the  mate.  Some  of  the  owners  also 
distrusted  his  fitness  when  they  employed  him,  and  made  an  effort  to 
engage  another  person  in  his  stead;  and  one  of  them,  after  having 
heard  of  the  disaster,  expressed  his  regret  that  the  person  to  whom 
he  first  applied  had  not  taken  his  place. 

The  case  of  Hough  v.  Western  Trans.  Co.,  3  Wall.  20,  was  a 
libel  in  personam  against  the  owners  of  the  steamer  Falcon.  The 
vessel,  while  made  fast  to  hbellant's  wharf,  took  fire  through  the 
negligence  of  the  master  and  crew.  The  fire  communicated  to 
the  wharf,  which  was  destroyed  with  the  buildings  on  it  and  those 
adjacent.  While  the  court  held  that  the  tort  was  committed  on 
land  and,  not  being  maritime,  the  admiralty  court  was  without 
jurisdiction,  it  upheld  the  principle  of  the  liability  of  owners  for 
the  negligence  of  the  master  and  crew  as  follows: 

The  owner  of  a  vessel  is  liable  for  injuries  done  to  third  persons  or 
property  by  the  negligence  or  malfeasance  of  the  master  and  crew 
while  in  the  discharge  of  their  duties  and  acting  within  the  scope  of 
their  authority.  It  is  upon  this  principle  that  the  defendants  are 
liable,  if  at  all,  to  the  libellants  for  the  damages  sustained.  The 
circumstance  that  the  agents  were  in  the  employment  of  the  owners 
on  board  the  vessel,  and  that  the  negligence  occurred  while  so  em- 


OWNERS  AND  MANAGERS  33 

ployed,  and  which  occasioned  the  damage,  gives  to  the  hbellants  the 
right  of  action. 

This  is,  indeed,  simply  the  general  law  of  master  and  servant  or 
principal  and  agent. 

ID.  Temporary  Ownership. —  The  ship  may  be  chartered  so 
that  the  hirer  will  become,  in  law,  her  temporary  owner.  This  is 
ordinarily  accomplished  by  means  of  a  written  contract  called  a 
charter  party.  It  may  contain  whatever  agreements  the  parties 
choose  but  when  its  legal  effect  is  to  give  the  hirer  exclusive  pos- 
session, control  and  management,  so  that  he  appoints  the  master, 
runs  the  vessel  and  receives  the  entire  profits,  there  is  a  demise  or 
conveyance  of  the  ship  and  the  hirer  becomes  owner  pro  hoc  vice, 
or,  for  the  time  being.  He  is  then  responsible  for  her  contracts 
and  torts  and  may  limit  his  liability  as  if  he  were  the  actual  owner 
and  the  latter  is  freed  from  personal  responsibility.  The  situation 
is  like  a  lease  of  premises  on  land  to  a  tenant.  The  officers  and 
crew  become  the  agents  or  employees  of  the  charterer  and,  in 
matters  of  contract  particularly,  as  for  supplies  and  repairs,  the 
ship  may  not  be  subject  to  maritime  liens  if  the  creditor  has  notice 
of  the  terms  of  the  charter  party  which  preclude  their  creation. 
To  effect  this  change  into  temporary  ownership,  the  terms  of  the 
instrument  should  be  plain  and  explicit ;  if  indefinite  or  ambiguous, 
the  construction  will  be  against  a  demise  of  the  ship,  the  courts 
favoring  an  interpretation  which  preserves  the  liabilities  and  Hens 
incident  to  the  permanent  title. 

The  temporary  ownership  of  a  vessel  by  a  person  other  than  the 
real  owner  does  not  relieve  the  ship  -herself  from  those  liabilities 
which  attach  to  her  in  any  event :  For  example,  her  liability  for 
damage  caused  others  by  her  torts,  as  faulty  navigation ;  or  from 
liability  under  those  contracts  for  which  the  ship  itself  is  primarily 
responsible,  such  as  contracts  for  bunkers  and  supplies  and  neces- 
sary repairs  elsewhere  than  in  the  home  port.  This  principle  is 
laid  down  in  the  case  of  the  Barnstable,  181  U.  S.  464,  as  follows: 

The  law  in  this  country  is  entirely  well  settled  that  the  ship  itself 
is  to  be  treated  in  some  sense  as  the  principal  and  as  personally 
liable  for  the  negligence  of  any  one  who  is  lawfully  in  possession  of 
her  whether  as  owner  or  charterer. 

And  in  the  case  of  Sherlock  v.  Ailing,  93  U.  S.  99,  where  it  was 
said : 


34  THE  LAW  OF  THE  SEA 

By  the  maritime  law  the  vessel,  as  well  as  owners,  is  liable  to 
the  party  injured  for  damages  caused  by  its  torts.  By  that  law  the 
vessel  is  deemed  to  be  an  offending  thing  and  may  be  prosecuted  with- 
out any  reference  to  the  adjustment  of  responsibility  between  the 
owners  and  the  employees  for  the  negligence  which  resulted  in  the 
injury. 

The  claim  of  the  true  owner  to  his  vessel  will  not,  however,  be 
defeated  by  fraudulent  acts  of  the  temporary  owner  to  which  the 
real  owner  was  not  privy,  because  in  such  a  case  the  theory  of  the 
agency  of  the  master  or  temporary  owner  for  the  real  owner  fails. 
This  subject  is  discussed  in  the  leading  case  of  the  Freeman,  i8 
How.  182.  In  that  case  the  temporary  owner  caused  the  master 
to  sign  bills  of  lading,  certifying  that  a  quantity  of  flour  had 
been  shipped  on  board  the  schooner  from  Cleveland  to  Buffalo 
by  the  temporary  owner  consigned  to  the  libellants.  No 
such  flour  had  in  fact  been  shipped  and  the  consignees,  who  had 
advanced  money  on  the  bills  of  lading,  libeled  the  ship.  The 
real  owner  filed  a  claim  to  the  vessel.  The  Court  (Curtis,  J.) 
said : 

Bills  of  lading  themselves  are  not  real  contracts  of  affreightment, 
but  only  false  pretenses  of  such  contracts ;  and  the  question  is, 
whether  they  can  operate,  under  the  maritime  law,  to  create  a  lien, 
binding  the  interest  of  the  claimant  in  the  vessel. 

Under  the  maritime  law  of  the  United  States  the  vessel  is  bound 
to  the  cargo,  and  the  cargo  to  the  vessel,  for  the  performance  of  a 
contract  of  affreightment ;  but  the  law  creates  no  lien  on  a  vessel 
as  a  security  for  the  performance  of  a  contract  to  transport  cargo, 
until  some  lawful  contract  of  affreightment  is  made,  and  a  cargo 
shipped  under  it. 

In  this  case  there  was  no  cargo  to  which  the  ship  could  be  bound, 
and  there  was  no  contract  made,  for  the  performance  of  which  the 
ship  could  stand  as  security. 

But  the  real  question  is,  whether,  in  favor  of  a  bona  iide  holder  of 
such  bills  of  lading  procured  from  the  master  by  the  fraud  of  an 
owner  pro  hac  vice,  the  general  owner  is  estopped  to  show  the  truth, 
as  undoubtedly  the  special  owner  would  be. 

We  are  of  opinion  that,  under  our  admiralty  law  contract  of  af- 
freightment, entered  into  with  the  master,  in  good  faith,  and  within 
the  scope  of  his  apparent  authority  as  master,  bind  the  vessel  to  the 
merchandise  for  the  performance  of  such  contracts,  wholly  irrespec- 
tive of  the  ownership  of  the  vessel,  and  whether  the  master  be  the 
agent  of  the  general  or  special  owner. 


OWNERS  AND  MANAGERS  35 

For  the  ground  on  which  we  rest  the  authority  of  the  master,  who  is 
either  special  owner  or  agent  of  the  special  owner,  is,  that  when  the 
general  owner  intrusts  the  special  owner  with  the  entire  control  and 
employment  of  the  ship,  it  is  a  just  and  reasonable  implication  of  law 
that  the  general  owner  assents  to  the  creation  of  liens  binding  upon 
his  interest  in  the  vessel,  as  security  for  the  performance  of  contracts 
of  affreightment  made  in  the  course  of  the  lawful  employment  of  the 
vessel.  The  general  owner  must  be  taken  to  know  that  the  purpose 
for  which  the  vessel  is  hired,  when  not  employed  to  carry  cargo 
belonging  to  the  hirer,  is  to  carry  cargo  of  their  persons;  and  that 
bills  of  lading,  or  charter-parties,  must,  in  the  invariable  regular 
course  of  that  business,  be  made,  for  the  performance  of  which  the 
law  confers  a  lien  on  the  vessel. 

He  should  be  considered  as  contemplating  and  consenting  that 
what  is  uniformly  done  may  be  done  effectually;  and  he  should  not 
be  allowed  to  say  that  he  did  not  expect,  or  agree,  that  third  persons, 
who  have  shipped  merchandise  and  taken  bills  of  lading  therefor, 
would  thereby  acquire  a  lien  on  a  vessel  which  he  has  placed  under 
the  control  of  another,  for  the  very  purpose  of  enabling  him  to  make 
such  contract  to  which  the  law  attaches  a  lien. 

There  can  be  no  implication  that  the  general  owner  consented  that 
false  pretenses  of  contract,  having  the  semblance  of  bills  of  lading, 
should  be  created  as  instruments  of  fraud;  or  that,  if  so  created, 
they  should  in  any  manner  affect  him  or  his  property.  They  do  not 
grow  out  of  any  employment  of  the  vessel ;  and  there  is  as  little 
privity  or  connection  between  him,  or  his  vessel,  and  such  simulated 
bills  of  lading,  as  there  would  be  between  him  and  any  other  fraud 
or  forgery  which  the  master  or  special  owner  might  permit. 

Nor  can  the  general  owner  be  estopped  from  showing  the  real 
character  of  the  transaction,  by  the  fact  that  the  libellants  advanced 
money  on  the  faith  of  the  bills  of  lading;  because  this  change  in  the 
libellants'  condition  was  not  induced  by  the  act  of  the  claimant,  or  of 
any  one  acting  within  the  scope  of  an  authority  which  the  claimant 
had  conferred.  Even  if  the  master  had  been  appointed  by  the  claim- 
ant, a  willful  fraud  committed  by  him  on  a  third  person,  by  signing 
false  bills  of  lading,  would  not  be  within  his  agency.  If  the  signer 
of  a  bill  of  lading,  was  not  the  master  of  the  vessel,  no  one  would 
suppose  the  vessel  bound;  and  the  reason  is,  because  the  bill  is 
signed  by  one  not  in  privity  with  the  owner.  But  the  same  reason 
applies  to  a  signature  made  by  a  master  out  of  the  course  of  his  em- 
ployment. The  taker  assumes  the  risk,  not  only  of  the  genuineness,  of 
the  signature,  and  of  the  fact  that  the  signer  was  master  of  the  vessel, 
but  also  the  apparent  authority  of  the  master  to  issue  the  bill  of 
lading.  We  say  the  apparent  authority,  because  any  secret  instruc- 
tion by  the  owner,  inconsistent  with  the  authority  with  which  the 
master  appears  to  be  clothed,  would  not  affect  third  persons.  But 
the  master  of  a  vessel  has  no  more  than  apparent  unlimited  authority 


36  THE  LAW  OF  THE  SEA 

to  sign  bills  of  lading,  than  he  has  to  sign  bills  of  sale  of  the  ship. 
He  has  an  apparent  authority,  if  the  ship  be  a  general  one,  to  sign 
bills  of  lading  for  cargo  actually  shipped;  and  he  has  also  authority 
to  sign  a  bill  of  sale  of  a  ship,  when,  in  case  of  disaster,  his  power 
of  sale  arises.  But  the  authority,  in  each  case,  arises  out  of,  and 
depends  upon  a  particular  state  of  facts.  It  is  not  an  unlimited  au- 
thority in  the  one  case  more  than  in  the  other ;  and  his  act,  in  either 
case,  does  not  bind  the  owner,  even  in  favor  of  an  innocent  pur- 
chaser, if  the  facts  upon  which  his  power  depended  did  not  exist; 
and  it  is  incumbent  upon  those  who  are  about  to  change  their  condi- 
tions, upon  the  faith  of  his  authority  to  ascertain  the  existence  of  all 
the  facts  upon  which  his  authority  depends. 

On  these  grounds,  we  are  of  the  opinion  that,  upon  the  facts  as  they 
appear  from  the  evidence  in  the  record,  the  maritime  law  gives  no 
lien  upon  the  schooner  that  the  claimant  is  not  estopped  from  alleg- 
ing and  proving  those  facts. 

It  should  be  noted  that  the  mere  record  title  does  not  conclu- 
sively establish  ovi^nership.  That  title  may  be  only  security  for 
the  real  owner  out  of  control.  The  real  facts  may  be  shown  when 
necessary  (Davidson  7'.  Baldwin,  79  Fed.  95). 

II.  Managing  Owner. —  The  shore  business  of  a  ship  is  usually 
attended  to  by  an  agent  or  representative  called  the  "  managing 
owner,"  "  ship's  husband,"  *'  shore-captain,"  "  port-captain," 
"  managing-agent,"  or  *'  manager."  Different  expressions  pre- 
vail in  different  localities  but  they  all  mean  substantially  the  same 
thing  —  an  agent  of  the  owners  charged  with  keeping  the  ship  in 
good  repair  and  finding  business  for  her.  He  has  authority  to 
direct  all  proper  repairs,  equipment  and  outfit,  to  hire  the  officers 
and  crew,  to  make  contracts  for  freight,  to  collect  and  disburse  the 
earnings.  He  should  see  that  the  ship  is  seaworthy  and  supplied 
with  all  necessary  and  proper  papers.  He  has  no  implied  author- 
ity to  borrow  money,  nor  surrender  a  lien  for  freight,  nor  to 
insure ;  he  cannot  bind  the  owners  to  the  expenses  of  a  lawsuit 
without  their  special  consent.  It  is  doubtful  whether  he  can,  in 
any  event,  pledge  the  credit  of  the  owners  beyond  their  interest 
in  the  ship  and  it  is  probable  that  they  are  entitled  to  the  statutory 
limitation  of  liability  against  all  his  contracts  or  torts  in  which 
they  do  not  personally  participate.  If,  however,  the  ship  is  owned 
by  a  corporation,  it  is  not  advisable  that  any  of  the  directors  or 
officers  should  also  be  the  managing  owner,  as  his  "  privity  or 
knowledge  "  may  thereby  attach  to  the  corporation. 


OWNERS  AND  MANAGERS  37 

In  Woodall  v.  Dempsey,  100  Fed.  653,  the  Court  found  the  facts 
to  be  as  follows  : 

The  suit  is  for  $3,513,  a  balance  due  for  repairs.  The  work  was 
done  at  Baltimore  costing  $16,000.  The  home  port  of  the  vessel  was 
Philadelphia,  the  owners  being  Patrick  Dempsey  and  Henry  Hess, 
who  reside  here ;  the  former  having  four-fifths,  the  latter  one.  Demp- 
sey, managing  owner,  ordered  and  superintended  the  repairs.  INIr. 
Woodall  sought  the  work  for  his  company,  and  came  to  Philadelphia 
to  obtain  it.  At  that  time  it  was  supposed  $5,500  would  cover  the 
cost.  The  vessel  was  subsequently  taken  to  the  libellants'  place  at 
Baltimore  and  the  work  commenced  in  pursuance  of  arrangements 
made  here.  It  was  afterwards  found  that  much  more  must  be  done 
than  had  originally  been  contemplated,  and  a  much  larger  bill  in- 
curred. On  the  completion  of  the  work,  notes  (of  Dempsey)  were 
given  for  the  $3,513  unpaid,  and  the  vessel  was  delivered  to  the 
owners. 

Woodall  brought  an  action  in  personam  against  Dempsey  and 
Hess  for  the  $3,513.  It  appeared  that  plaintifif  dealt  with  Demp- 
sey alone  and  there  was  no  evidence  to  show  that  he  took  any 
action  or  made  any  expenditure  on  the  credit  of  Hess.  The  Court 
said : 

In  my  opinion  the  case  turns  on  the  power  of  Dempsey,  considered 
merely  as  managing-owner,  to  bind  Hess  by  the  contract  for  repairs. 
Upon  this  subject  the  decision  in  Spedden  v.  Koenig,  24  C.  C.  A.  189, 
78  Fed.  504,  relied  on  by  the  respondents,  seems  to  be  much  in  point. 
The  syllabus  of  the  case  states  correctly  the  rule  applied  by  the 
court : 

"  In  the  home  port,  where  all  the  owners  reside,  the  manag- 
ing owner,  though  registered  as  such  at  the  custom  house, 
can  not,  merely  by  virtue  of  that  relation,  order  supplies  and 
bind  his  coowners  to  a  personal  liability  therefor." 

12.  Compensation  and  Lien. —  The  compensation  of  the  man- 
aging owner  or  ship's  husband  depends  upon  contract,  express  or 
implied,  with  the  owners.  In  some  localities,  usage  may  provide 
a  commission  on  the  amounts  of  money  which  he  handles.  Where 
he  is  not  one  of  the  owners,  the  law  would  doubtless  imply  a 
promise  to  pay  him  a  reasonable  compensation ;  where  he  is  a 
part  owner  himself,  it  is  doubtful  if  compensation  could  be  re- 
covered in  the  absence  of  a  definite  agreement ;  ordinarily  tenants 
in  common  are  not  entitled  to  charge  each  other  for  services  ren- 
dered in  the  care  and  management  of  the  common  property,  in  the 

11^  iH^k 


38  THE  LAW  OF  THE  SEA 

absence  of  a  statute  or  special  contract.  The  managing  owner  is 
not  entitled  to  a  lien  upon  the  ship  for  his  compensation  or  dis- 
bursements but  he  may  have  a  lien  upon  the  profits  of  a  voyage  in 
his  hands  or  upon  the  proceeds  of  the  ship  in  the  same  situation. 

REFERENCES  FOR  GENERAL  READING 

Shipping  and  Admiralty,  Parsons,  Vol.  I,  Chapter  IV. 

Admiralty,  Hughes,  Chapter  XV. 

Spedden  v.  Koenig,  78  Fed.  504. 

Law  of  Part-Owners  of  Vessels,  88  Am.  Dec.  364. 

Gillespie  v.  Winberg,  4  Daly  (N.  Y.)  318. 

Mitchell  V.  Chambers,  43  Mich.  150. 

Maritime  Law,  Saunders,  Chapters  I  and  XV. 


CHAPTER  IV 
THE  MASTER 

I.  Appointment  and  General  Authority. —  The  master  is  the 
commander  of  a  merchant  vessel.  He  has  full  charge  of,  and  per- 
sonal responsibility  for  the  navigation  and  control  of  the  ship, 
passengers,  crew  and  cargo  as  the  representative  and  confidential 
agent  of  the  owner.  The  position  is  one  of  the  most  dignified 
and  responsible  known  to  the  law. 

In  order  to  have  the  ship  seaworthy,  an  owner  must  provide  a 
master  who  is  fully  competent  in  respect  of  care,  skill  and  hon- 
esty, a  man  of  sound  judgment  and  discretion;  and  in  general, 
there  must  also  be  provided  one  of  sufficient  ability  to  supply  his 
place,  in  case  of  accident  or  disability.  (The  Niagara,  21  How. 
(U.  S.)  7;  2  Parsons  Sh.  &  Ad.  i.) 

Correspondingly,  he  is  an  officer  to  whom  great  power  and  wide 
discretion  are  necessarily  confided.  His  authority  is  summary  and 
often  absolute,  especially  at  sea,  and  can  seldom  be  resisted  by 
those  over  whom  he  is  placed  —  as  Chancellor  Kent  has  expressed 
it :  "  He  should  have  the  talent  to  command  in  the  midst  of  dan- 
ger, and  courage,  and  presence  of  mind  to  meet  and  surmount  ex- 
traordinary perils.  He  should  be  able  to  dissipate  fear,  to  calm 
disturbed  minds,  and  inspire  confidence  in  the  breasts  of  all  who 
are  under  his  charge,  in  tempests  as  well  as  in  battle.  The  com- 
mander of  a  ship  must  give  desperate  commands ;  he  must  require 
instantaneous  obedience.  He  must  watch  for  the  health  and  com- 
fort of  the  crew,  as  well  as  for  the  safety  of  the  ship  and  cargo. 
It  is  necessary  that  he  should  maintain  perfect  order,  and  preserve 
the  most  exact  discipline  under  the  guidance  of  justice,  moderation 
and  good  sense." 

Our  statutes  require  that  only  those  whom  the  law  has  examined 
and  approved  shall  occupy  that  position.  The  master  must  be 
an  American  citizen  (Rev.  St.  §  4139)  ;  ^e  must  have  a  license 
from  the  Inspectors,  who  are  charged  to  examine  into  his  charac- 

39 


40  THE  LAW  OF  THE  SEA 

ter  and  habits,  as  well  as  his  technical  qualifications  (§  4439)  ;^ 
he  is  sworn  to  the  performance  of  the  duties  of  his  office  (§  4445)  ; 
he  must  exhibit  his  license  to  the  public  (§  4446)  ;  he  is  subject  to 
summary  punishment  for  incompetency  (§  4450)  ;  and  his  per- 
sonal liability  cannot  be  limited,  as  the  owners  may  by  law. 
In  short  the  law  contemplates  the  selection  of  picked  men  as  mas- 
ters in  the  merchant  marine,  and  forbids  the  employment  of  others. 

No  formalities  are  required  in  his  appointment  by  the  owner. 
Any  authorization  which  would  suffice  to  otherwise  create  the  rela- 
tion of  master  and  servant,  or  principal  and  agent,  is  enough  (The 
Boston,  Blatch.  &  H.  309).  His  contract  need  not  be  in  writ- 
ing, even  if  for  more  than  one  year.  His  wages  are  a  matter  of 
contract;  he  has  no  lien  on  the  ship  (The  Nebraska,  75  Fed.  598), 
unless,  possibly,  one  is  created  by  the  local  law  of  the  ship's  flag. 

In  case  of  disaster,  his  duty  requires  him  to  stay  by  the  ship  as 
long  as  there  is  any  possibility  of  good  resulting  therefrom.  The 
popular  phrase  that  "  the  captain  should  be  the  last  man  to  quit 
the  ship "  is  well  founded  in  law  (The  Niagara,  21  How. 
(U.S.)  7).   _ 

His  authority  is  generally  implied  and  is  according  to  the  law 
of  the  ship's  flag.  Generally  speaking,  he  is  the  owner's  agent 
and  his  authority  extends  to  all  matters  within  the  scope  of  his 
appointment.  Where  the  owner  is  present,  or  easily  accessible, 
this  authority  is  narrowed,  but  otherwise  it  may  be  very  broad, 
and  measured  only  by  the  necessities  of  the  situation,  and  the  use 
and  employment  of  the  ship. 

On  shipboard,  his  authority  is  supreme,  except,  possibly,  in  the 
presence  of  the  owner. 

He  has  power  to  enforce  discipline  and  inflict  punishment,  not 
unlike  that  in  the  relationship  of  parent  and  child,  or  teacher  and 
pupil,  save  that  he  is  forbidden  by  statute  to  mflict  corporal  pun- 
ishment (Act  of  March  4,  191 5).  The  old  flogging  days,  there- 
fore, are  over,  and  the  master  who  inflicts  corporal  punishment  is 
guilty  of  a  crime.  He  may,  in  proper  cases,  discharge  or  disrate 
members  of  the  crew. 

On  the  other  hand,  the  law  charges  him  with  the  duty  of  seeing 

1  There  are  a  few  instances  in  which  a  master  need  not  be  licensed. 
All  masters  of  steamers  must  be  licensed,  all  masters  of  sailing  vessels 
of  over  700  tons  and  all  vessels  of  over  100  tons  carrying  passengers  for 
hire  (§  4438).    Other  masters  need  not  be  licensed. 


THE  MASTER  41 

that  the  crew  has  sufficient  provisions  (§  4564)  ;  proper  medical 
care  (§  45^9)  ;  protection  against  unlawful  violence,  and  the  like; 
and  he  is  criminally  liable  for  abandoning  sailors  in  a  foreign 
port  (§  5363).'  ^ 

2.  Personal  Liability. —  iHis  personal  liability  is  practically  un- 
limited. The  owner  may  confine  his  liability  to  the  value  of  the 
ship  but  the  master  has  no  such  privilege.  Thus  materialmen 
may  sue  the  master  personally  for  supplies  and  repairs  (General 
Admiralty  Rule  12)  ;^  the  sailors  may  sue  him  for  their  wages 
(Rule  13)  ;  the  pilot,  for  pilotage  (Rule  14)  ;  suits  for  collision 
may  be  brought  against  him  alone  (Rule  15),  and  he  is  responsible 
for  moneys  loaned  the  ship  in  a  foreign  port  (Rule  17)  ;  so,  also 
he  is  liable  for  cargo  injured  by  the  ship  and  may  be  sued  by  the 
underwriters  therefor  (Co.  v.  Dexter,  52  Fed.  152). 

3.  Restriction  on  Authority. —  The  master  is  the  owner's  agent 
in  all  matters  fairly  within  the  scope  of  his  authority  but  has  no 
more  authority  to  bind  him  than  any  other  special  agent.  He  is 
not  a  general  agent  and  his  powers  are  usually  confined  to  the 
property  in  his  charge.  In  cases  of  necessity,  when  the  owner  is 
not  present,  his  authority  is  very  broad  but  it  is  correspondingly 
restricted  when  the  owner  is  present.  He  cannot  bind  the  owner 
personally  beyond  the  value  of  the  ship  and  freight  pending;  he 
cannot  vary  or  annul  the  owner's  agreements;  he  cannot  make  a 
promissory  note  binding  on  the  owner ;  or  bind  him  for  cargo  not 
actually  on  board  by  a  bill-of-lading ;  *  or  admit  an  invalid  claim; 
nor  purchase  a  cargo  on  his  account. 

2  A  question  sometimes  arises  whether  a  particular  individual  occupies 
the  position  of  master  or  not.  The  fact  that  the  man  is  enrolled  as  mas- 
ter is  not  necessarily  conclusive  of  this  question.  Where  a  man  was 
clothed  with  and  did  actually  exercise  the  duties  of  master  during  the 
illness  of  the  registered  master  he  was  held  to  have  been  de  facto  master 
and  hence  not  entitled  to  a  maritime  lien  for  his  wages  (Hattie  Thomas, 
29  Fed.  297).  On  the  other  hand,  the  engineer  of  a  dredge  who  was 
highest  officer  on  the  vessel  and  directed  the  firemen  and  other  hands  but 
who  had  no  authority  to  engage  or  dismiss  men  or  purchase  supplies,  was 
held  not  to  be  the  master  and  his  lien  for  wages  was  sustained  (Atlantic, 
53  Fed.  607).  In  the  Calypso,  230  Fed.  962,  it  was  said:  "  the  master  of 
a  ship  is  pro  hac  vice  the  agent  of  the  owner  and  ...  his  apponitment  or 
authorization  lies  in  contract,  ...  if  the  master  has  not  been  appomted  by 
the  owner  enrollment  cannot  make  him   such."  ,      ^  r  *», 

3  The  rules  referred  to  are  "Rules  of  Practice  for  the  Courts  ot  the 
United  States  in  Admiralty  and  Maritime  Jurisdiction  on  the  mstance 
side  of  the  court."  ,    1  1  ..t  »,. 

4  In  a  number  of  leading  cases  attempts  were  made  to  hold  the  owner 
liable  for  shortage  in  cargo  where  the  master  had  signed  bills  ot  lading 


42  THE  LAW  OF  THE  SEA 

In  dealing  with  other  persons  on  board  his  vessel  his  authority  is 
as  broad  as  the  exigencies  of  his  situation  require  and  he  may,  in 
proper  cases,  and  after  exhausting  pacific  measures  put  even  pas- 
sengers under  arrest.  But  he  cannot  delegate  this  authority  to 
minor  officials  or  others  on  board  but  must  personally  exercise 
such  responsible  duties  and  see  to  it  that  nothing  unreasonable  is 
done.  It  has  been  held  that  while  he  may  restrain,  or  even  con- 
fine, a  passenger  who  refuses  to  submit  to  the  necessary  discipline 
of  the  ship,  he  ought  not  to  inflict  any  higher  punishment  than  a 
reprimand  upon  a  passenger  without  first  conferring  with  his 
officers  and  entering  the  facts  on  the  log.  His  authority  to  punish 
members  of  the  crew  must  be  exercised  with  moderation  and  in 
reason.  He  has  no  authority  to  punish  by  flogging  or  the  use  of 
any  illegal  instrument  and  in  testing  the  legality  of  punishment  or 
chastisement  the  methods  and  weapons  employed  are  important.^ 

for  goods  not  actually  on  board.  Among  these  are  the  Freeman,  i8 
How.  182;  Grant  v.  Norway,  10  C.  B.  665;  McLean  v.  Fleming,  L.  R. 
2  H.  L.  Sc.  128  (English  cases),  and  American  Sugar  Refining  Co.  v. 
Maddock,  93  Fed.  980.  The  principle  laid  down  in  these  cases  is  "  not 
merely  that  the  captain  has  no  authority  to  sign  a  bill  of  lading  in  respect 
to  goods  not  on  board  but  the  nature  and  limit  of  his  authority  are  well 
known  among  mercantile  persons." 

^  Ragland  v.  Norfolk  &  Washington  Steamboat  Co.,  163  Fed.  376.  This 
was  a  libel  in  personam  in  which  the  libellant  claimed  damages  on  account 
of  an  alleged  improper  arrest  while  a  passenger  on  board  respondent's 
vessel.     The  court  said: 

"  Officers  of  steamboats  and  passenger  vessels  should  be  exceedingly 
careful  before  putting  a  passenger  under  arrest.  They  are  the  servants  of 
the  passengers  on  their  boats,  paid  for  the  purpose  of  treating  them 
kindly.  The  trouble  on  this  occasion  arose  from  a  misapprehension  on 
the  part  of  the  captain  of  the  steamer  of  his  power  and  duty  as  master  of 
the  ship.  The  master  of  a  passenger  steamer  is  an  exceedingly  important 
officer.  He  should  be  of  exceptional  firmness,  intelligence  and  character, 
and  more  than  ordinarily  endowed  with  common  sense  and  tact  and  always 
gentle  and  courteous.  He  has  vast  power  in  dealing  with  passengers  in 
situations  that  are  liable  to  and  do  arise  on  his  vessel,  and  he  may  in  a 
proper  case  after  exhausting  pacific  measures,  place  a  passenger  under 
arrest,  but,  to  suppose,  as  he  testified  he  did,  that  he  could  delegate  this 
authority  to  minor  officials  or  others  on  board,  cannot  be  sanctioned. 
When  the  time  comes  to  arrest  passengers,  an  occurrence  on  a  steamboat 
only  second  in  importance  to  navigating  the  vessel  in  safety,  it  is  his  duty 
to  properly  care  for  and  protect  them  as  far  as  is  reasonably  possible,  and 
personally  to  exercise  the  responsible  duties  at  hand,  and  at  least  give 
personal  direction  to  what  is  being  done." 

The  Lizzie  Burrill,  115  Fed.  lOiS,  with  reference  to  the  duty  of  the 
master  toward  the  crew.  The  court  quotes  a  number  of  American  and 
English  authorities.     The  syllabus  summarizes  the  decision  as  follows: 

"  It  is  the  duty  of  the  master  of  a  ship  while  at  sea  to  protect  his  crew 
from  violence  and  brutal  treatment  by  other  officers  under  his  command. 

"The  master  of  a  ship  while  on  board  is  the  agent  of  the  owners  in 
respect  to  all  matters  which  come  within  the  scope  of  his  duty,  and  the 


THE  MASTER  43 

4.  Rights  of  Master.— He  is  entitled,  of  course,  to  have  his 
wages  paid  according  to  his  contract  —  though  he  has  no  hen  for 
them  on  the  ship  —  and  such  a  contract  is  vahd  and  enforceable 
although  made  without  writing  and  for  more  than  one  year.  He 
is  also  entitled  to  recompense  for  all  money  advanced  for  the  ship 
within  the  scope  of  his  employment  and  to  indemnity  against  loss 
or  damage  which  he  may  sustain  therein  without  his  own  fault. 
He  is  also  entitled  to  care  and  cure  for  injuries  sustained  in  the 
service  of  the  ship,  irrespective  of  his  own  fault,  like  other  mem- 
bers of  the  ship's  company.  He  is  entitled  to  extra  wages  for 
services  outside  of  his  hne  of  duty. 

He  has  a  lien  on  the  freight "  for  his  wages,  disbursements,  ex- 
penses and  necessary  Habilities.  This  may  be  asserted  by  with- 
holding from  the  moneys  collected  by  him  or  by  an  attachment  or 
garnishment.  When  the  ship  is  in  charge  of  a  licensed  pilot  ^  the 
master  should  remain  in  command  except  so  far  as  the  pilot's 
duties  are  concerned  and  see  that  there  is  a  sufficient  watch  on 
deck  and  that  the  men  are  attentive  to  their  duties ;  he  may  advise 
with  the  pilot  and  even  displace  him  in  case  of  intoxication  or 
manifested  incompetence.  By  virtue  of  his  general  agency  for  the 
owners  in  relation  to  the  ship,  he  may  sue  in  his  own  name,  in 
their  behalf,  to  recover  for  collision  or  for  breach  of  contract  of 
affreightment  or  on  any  other  account  connected  with  the  business 
entrusted  to  him. 

5.  Wages. —  His  wages  depend  on  the  contract  with  the  owner 
and,  where  that  is  not  express,  will  be  allowed  in  accordance  with 
the  prevailing  usage  of  the  place  and  trade.  The  fact  that  he  is  a 
part-owner  does  not  affect  his  rights  in  this  respect.  He  may  pay 
himself  out  of  freight-money  which  passes  through  his  hands.  In 
case  of  wrongful  discharge  he  may  sue  for  his  wages  for  the 
balance  of  the  term  in  one  action  for  damages  for  breach  of  con- 
tract or  bring  successive  suits  for  each  installment  as  it  falls  due. 
He  is  bound,  however,  to  reduce  his  damages  as  much  as  he  can 
by  other  employment.     It  has  been  held  that  where  there  is  delay 

owners  and  ship  are  liable  in  damages  to  a  seaman,  not  only  for  the  un- 
warranted ill-treatment  of  such  seaman  by  the  master  himself,  but  for  his 
failure  to  perform  his  duty  to  protect  the  seaman  from  assaults  and  ill- 
treatment  by  other  officers." 

6  The  frequently  misused  term  "  freight "  means  the  compensation  for 
carrying  the  cargo  and  not  the  goods  thereunder. 

7  See  Chapter  XII,  "  Pilotage,"  infra. 


44  THE  LAW  OF  THE  SEA 

in  paying  him  without  due  cause,  he  may  claim  extra  wages  like 
other  members  of  the  crew. 

6.  Lien. —  As  has  been  remarked  the  general  rule  is  that  the 
master  has  no  lien  on  the  ship  for  his  wages.  In  the  Orleans  v. 
Phoebus,  II  Peters  175,  wherein  Phoebus  sought  to  enforce  a  lien 
on  the  steamboat  Orleans  for  his  wages  as  master,  the  Supreme 
Court  said: 

By  the  maritime  law  the  master  has  no  lien  on  the  ship  even  for 
maritime  wages. 

This  is  supposed  to  be  for  the  reason  that  he  contracts  on  the 
personal  credit  of  the  owner  and  also  because  it  would  tend  to 
impair  the  owner's  personal  confidence  in  his  integrity.  Another 
ground  is  that  where  the  master  collects  the  freight  he  can  pay 
himself  directly  and  so  needs  no  lien.  But  a  lien  may  be  given  by 
the  terms  of  his  contract  or  by  a  statute  of  the  state  from  which 
the  vessel  hails ;  if  it  is,  it  will  be  enforced  in  the  admiralty. 

He  has  no  lien  on  the  cargo  belonging  to  the  owner  of  the  ship, 
and,  according  to  the  weight  of  authority,  no  lien  upon  cargo  be- 
longing to  any  other  shipper.  He  has,  however,  as  has  been  said, 
a  lien  on  the  freight  earned  by  the  vessel  for  his  wages,  disburse- 
ments and  necessary  Habilities.  This  may  be  asserted  by  with- 
holding from  the  moneys  collected  by  him  or  by  an  attachment  or 
garnishment.  In  the  Arcturus,  17  Fed.  95,  the  vessel  had  on 
board  a  quantity  of  telegraph  poles  owned  by  a  shipper  and  in- 
tended for  delivery  at  Sandusky,  upon  which  the  shipper  was  to 
pay  freight  in  the  usual  way.  Before  the  poles  were  unladen  at 
Sandusky,  the  vessel  was  seized  by  the  marshal  under  a  libel  filed 
by  certain  creditors,  so  that  the  master  could  not  and  did  not  un- 
load the  poles,  and  the  owner  was  compelled  to  pay  $70  to  have 
them  unloaded.  In  addition  to  this,  before  they  were  unladen  the 
owner  of  the  poles  was  compelled  to  pay  into  the  registry  of  the 
court  the  entire  freight  which  would  have  been  earned  had  the 
vessel  delivered  the  poles  to  him.  The  master  filed  a  libel,  assert- 
ing that  the  whole  freight  money  should  be  applied  to  his  unpaid 
wages,  and  claiming  also  a  lien  on  the  poles,  the  cargo,  for  his 
wages.  The  court  found  that  the  master  had  no  lien  on  the  cargo 
for  his  wages  beyond  the  amount  of  the  freight ;  that  he  was  only 
entitled  to  the  freight  actually  earned  by  the  vessel,  that  being  the 
freight  less  what  it  cost  to  unload  at  Sandusky,  and  that  he  was 


THE  MASTER 


45 


entitled  to  a  decree  for  that  part  of  the  freight  so  actually  earned, 
to  be  applied  on  his  wages  as  master. 

Where  the  master  performs  seamen's  duties  in  addition  to  his 
own  it  has  been  held  he  is  not  entitled  to  a  lien  for  compensation 
for  such  work,  but  in  some  more  recent  cases  such  liens  have  been 
allowed.     There  is  a  substantial  conflict  of  authority  on  this  point, 

7.  Relations  to  Cargo. —  He  has  no  authority  to  alter  a  charter 
party,  nor  to  sign  a  bill  of  lading  for  goods  not  shipped  or  con- 
taining a  misdescription  of  the  cargo.  He  must  not  mis-date  a 
bill  of  lading  nor  issue  one  contrary  to  the  terms  of  the  charter. 
He  must  see  that  the  cargo  is  well  and  sufficiently  stored  in  ac- 
cordance with  law  and  that  the  ship  is  not  overladen.  The  law 
contemplates  that  the  master  himself  must  be  a  competent  steve- 
dore. Thus  in  the  leading  case  of  the  Niagara,  21  How.  7,  it  is 
said: 

He  (the  master)  must  take  care  to  stow  and  arrange  the  cargo,  so 
that  the  different  goods  may  not  be  injured  by  each  other,  or  by  the 
motion  of  the  vessel,  or  its  leakage;  unless,  by  agreement,  this  duty 
is  to  be  performed  by  persons  employed  by  the  shipper.  In  the  ab- 
sence of  any  special  agreement,  his  duty  extends  to  all  that  relates 
to  the  lading,  as  well  as  the  transportation  and  delivery  of  the  goods; 
and  for  the  faithful  performance  of  those  duties  the  ship  is  liable, 
as  well  as  the  master  and  owners. 

Even  where  the  shipper  employs  the  stevedores,  it  remains  the 
right  and  duty  of  the  master  to  control  them  if  they  are  endan- 
gering the  ship's  safety.  Thus  in  the  Elton,  83  Fed.  519,  where 
the  charter  party  provided  that  the  stevedore  was  to  be  employed 
and  paid  by  the  contractor  and  was  to  load  the  steamer  under  the 
master's  direction,  it  was  said : 

At  no  time  does  the  master  lose  his  proper  place  in  the  control  of 
his  ship  and  everything  connected  therewith.  The  stevedore  is  not 
an  independent  contractor,  doing  the  work,  which,  when  completed,  is 
to  be  turned  over  to  the  master  for  his  approval  or  disapproval ;  but 
he  must  load  the  steamer  at  all  times  under  the  direction  and  subject 
to  the  control  of  the  master. 

During  the  voyage  and  until  the  goods  are  delivered  he  stands  as 
bailee  and  has  a  high  degree  of  responsibility  for  their  safekeepnig. 
He  must  pursue  the  voyage  without  deviation  or  delay  except  for 
the  purpose  of  saving  life.  He  must  be  watchful  to  protect  the 
cargo,  in  whole  and  in  parts,  as  against  deterioration  and  damage. 


46  THE  LAW  OF  THE  SEA 

Safe  custody  is  as  much  a  part  of  his  duty  as  safe  carriage  and 
delivery.  In  case  of  emergency  and  necessity  he  becomes  as  much 
an  agent  of  the  cargo  as  of  the  owner  of  the  ship  and  may  sacrifice 
a  part  for  the  safety  of  the  whole  venture,  or  mortgage  or  sell  the 
same,  or  tranship  it.  In  the  event  of  peril  the  duty  and  power 
devolve  upon  the  master  to  determine  whether  a  jettison  be  neces- 
sary. As  the  court  said  in  Lawrence  v.  Minturn,  17  How.  (U.  S.) 
100: 

If  he  was  a  competent  master,  if  an  emergency  actually  existed 
calling  for  a  decision,  whether  to  make  a  jettison  of  a  part  of  the 
cargo;  if  he  appears  to  have  arrived  at  his  decision  with  due  deliber- 
ation, by  a  fair  exercise  of  his  skill,  and  discretion,  with  no  unreas- 
onable timidity,  and  with  an  honest  intent  to  do  his  duty,  the  jettison 
is  lawful.  It  will  be  deemed  to  have  been  necessary  for  the  common 
safety,  because  the  person  to  whom  the  law  has  entrusted  authority  to 
decide  upon  and  make  it  has  duly  exercised  that  authority. 

But  though  the  master  may  jettison  cargo  to  Hghten  a  ship  in 
peril,  he  may  not,  for  that  purpose,  give  cargo  away.  It  is  not 
his  to  give,  and  if  he  attempts  to  do  so,  the  donee  takes  no  title 
and  is  liable  for  the  conversion  of  it  as  for  embezzlement  (The 
Albany,  44  Fed.  431). 

The  duties  and  powers  of  masters  of  vessels  in  regard  to  cargo, 
as  they  develop  out  of  the  exigencies  of  navigation  and  the  varied 
situation  abroad,  are  much  broader  than  those  of  the  agents  of 
carriers  by  land,  because  the  circumstances  are  so  very  different. 
Such  a  master  has  authority  to  do  whatever  is  really  necessary  to 
preserve  the  interests  of  an  absent  owner  or  consignees.  He  is 
bound  to  the  exercise  of  diligence  and  good  faith  to  give  the 
owner  or  consignee  timely  information ;  and  to  follow  instructions 
if  they  can  be  obtained.  If  his  possession  of  the  goods  is  inter- 
fered with  by  legal  process  or  seizure,  he  must  give  notice,  if  pos- 
sible, and  in  the  meantime  take  all  proper  steps  to  protect  or 
recover  the  goods.  He  may  be  bound  to  take  legal  proceedings  or 
answer  for  the  damages  caused  by  his  failure  to  do  so. 

8.  Pow^er  to  Sell  or  Mortgage  Cargo. —  This  power  to  dispose 
of  the  cargo  arises  out  of  the  necessity  of  the  case.  The  duty  is 
to  complete  the  voyage,  if  possible.  Money  for  repairs  and  ex- 
penses can  frequently  only  be  secured  by  disposing  of  some  of  the 
property  in  the  master's  charge.  If  so,  he  has  the  requisite  power ; 
of  course,  he  should  first  realize  what  he  can  on  the  credit  of  the 


THE  MASTER  47 

ship  and  freight-money  but  after  this  he  may  resort  to  the  cargo 
and  pledge  or  even  sell  it  accordingly.  In  the  leading  case  of 
Post  V.  Jones,  19  How.  (U.  S.)  150,  Mr.  Justice  Grier  said: 

It  cannot  be  doubted  that  a  master  has  power  to  sell  both  vessel  and 
cargo  in  certain  cases  of  absolute  necessity  .  .  .  Without  pretending 
to  enumerate  or  classify  the  multitude  of  cases  on  this  subject,  or 
to  state  all  the  possible  conditions  under  which  this  necessity  may 
exist,  we  may  say  that  it  is  applied  to  cases  where  the  vessel  is  dis- 
abled, stranded,  or  sunk;  where  the  master  has  no  means  and  can 
raise  no  funds  to  repair  her  so  as  to  prosecute  his  voyage ;  yet  where 
the  spcs  rccuperandi  may  have  a  value  in  the  market,  or  the  boats, 
the  anchor,  or  the  rigging,  are  or  may  be  saved,  and  have  a  value  in 
market;  where  the  cargo,  though  damaged,  has  a  value,  because  it 
has  a  market,  and  it  may  be  for  the  interest  of  all  concerned  that  it 
be  sold. 

Such  dealing  with  the  cargo  must  be  prudent  and  in  the  inter- 
est of  the  cargo-owner;  the  master  must  not  sacrifice  the  cargo 
to  the  ship  more  than  the  ship  to  the  cargo.  If  he  can  prudently 
delay  for  communication  with  the  owner  he  must  do  so ;  the  exer- 
cise of  this  power  depends  upon  the  necessity  and  the  utmost  good 
faith. 

The  case  of  Australasian  Steam  Navigation  Co.  v.  Morse,  L.  R. 
4  P.  S.  222 ;  I  Aspin.  407 ;  27  L  T.  Rep.  N.  S.  357 ;  8  Moore  P.  C. 
N.  S.  482;  20  Weekly  Rep.  728;  17  Eng.  Reprint  393,  was  de- 
cided by  the  Privy  Council  in  1872,  on  appeal  from  the  Supreme 
Court  for  New  South  Wales.  It  appeared  that  a  quantity  of 
wool  had  been  shipped  in  December,  1865,  on  board  the  Boomer- 
ang by  owners  living  inland,  for  transportation  from  Rockhamp- 
ton  to  consignees  in  Sydney.  The  vessel  stranded  and  filled  and 
the  cargo  was  so  damaged  by  water  that  it  became  dirty,  heated 
and  liable  to  ignition.  It  was  transferred  to  a  relief  vessel  which 
had  been  sent  out  from  Rockhampton  and  was  returned  to  that 
place,  where  there  were  no  facilities  for  storing  or  drying  it,  and 
it  was  in  danger  of  total  loss.  There  does  not  appear  to  have 
been  any  means  of  communicating  promptly  with  the  shippers,  but 
there  was  testimony  on  the  question  whether  it  might  have  been 
possible  to  reach  the  consignees  in  Sydney,  a  distance  of  900  miles, 
by  telegraph,  considering  the  imperfect  state  of  the  telegraph  in 
New  South  Wales  in  1865,  the  method  of  management  of  the  par- 
ticular telegraph  line,  and  the  fact  that  communication,  to  accom- 
plish anything,  must  have  been  attempted  on  Sunday  or  on  the 


48  THE  LAW  OF  THE  SEA 

next  day  which  was  Christmas.  Under  these  circumstances,  the 
master,  after  having  the  wool  surveyed  by  the  local  Lloyds  agent 
and  a  merchant,  sold  it  without  attempting  to  communicate.  For 
the  Privy  Council,  Sir  Montague  Smith  announced  the  law  as 
follows : 

The  general  principles  of  law  are  not  in  dispute,  viz.,  that  the  au- 
thority of  the  master  of  a  ship  to  sell  goods  of  an  absent  owner  is 
derived  from  the  necestsity  of  the  situation  in  which  he  finds  himself 
placed;  and  consequently  that,  to  justify  his  thus  dealing  with  the 
goods  he  must  establish  (i)  the  necessity  for  the  sale;  and  (2)  his 
inability  to  communicate  with  the  owner  and  obtain  his  instructions. 
Under  these  conditions  and  by  force  of  them  the  master  becomes  the 
agent  of  the  owner,  not  only  with  power  but  under  the  obligation 
(within  certain  limits)  of  acting  for  him;  but  he  is  not  in  any  case 
entitled  to  substitute  his  own  judgment  for  the  will  of  the  owner  in  the 
strong  act  of  selling  the  goods  where  it  is  possible,  as  hereafter  ex- 
plained, to  communicate  with  the  owner  and  ascertain  his  will. 

The  Council  defined  the  necessity  of  sale  as  meaning  "  that  the 
course  taken  must  be  clearly  highly  expedient,"  "  the  best  and 
most  prudent  thing  to  be  done  for  the  interest  of  the  owner  of 
the  goods,"  and  said : 

A  sale  of  cargo  by  the  master  may  obviously  be  necessary  in  the 
above  sense  of  the  word,  although  another  course  might  have  been 
taken  in  dealing  with  it ;  for  instance,  if,  in  this  case,  the  wool,  which 
had  no  value  but  as  an  article  of  commerce,  could  have  been  dried 
and  repacked  and  then  stored  or  sent  on.  but  at  a  cost  to  the  owner 
clearly  exceeding  any  possible  value  to  him  when  so  treated,  it  would 
plainly  have  been  the  duty  of  the  master  to  sell,  as  a  better  course  for 
the  interest  of  the  owner  of  the  property  than  to  save  it  by  incurring 
in  his  behalf  a  wasteful  expenditure.  In  other  words,  a  commercial 
necessity  for  the  sale  would  then  arise,  justifying  the  master  in  re- 
sorting to  it. 

On  the  subject  of  the  necessity  for  communicating  with  the  owners 
of  the  cargo,  the  Council  say : 

The  possibility  of  communicating  with  the  owners  must,  of  course, 
depend  on  the  circumstances  of  each  case,  involving  the  consideration 
of  the  facts  which  create  the  urgency  for  an  early  sale ;  the  distance 
of  the  port  from  the  owners;  the  means  of  communication  which 
may  exist;  and  the  general  position  of  the  master  in  the  particular 
emergency.  Such  communication  need  only  be  made  when  an  answer 
can  be  obtained,  or  there  is  a  reasonable  expectation  that  it  can  be 
obtained  before  the  sale.  When,  however,  there  is  ground  for  such 
an  expectation  every  endeavor,  so  far  as  the  position  in  which  he  is 


THE  MASTER  49 

placed  will  allow,  should  be  made  by  the  master  to  obtain  the  owner's 
instructions. 

There  can  be  no  doubt  that  the  master  is  bound  to  employ  the  tele- 
graph as  a  means  of  communication  where  it  can  usefully  be  done, 
but  in  this  case  the  state  of  the  particular  telegraph,  the  way  it  was 
managed,  and  how  far  explanatory  messages  could  be  transmitted  by 
it,  having  regard  to  the  time  and  circumstances  in  which  the  master 
was  placed,  were  proper  subjects  to  be  considered  by  the  jury,  together 
with  the  other  facts,  in  determining  the  practicability  of  communica- 
tion. 

The  necessities  which  may  arise  in  the  course  of  the  voyage  are 
innumerable  and  can  hardly  be  classified,  but  the  settled  and  rea- 
sonable rule  is  that  the  power  corresponds  to  the  necessity  at  hand. 
By  the  contract  of  carriage,  the  shipper  and  consignee  impliedly 
authorize  the  master,  when  he  cannot  obtain  instructions,  to  do 
everything  within  the  general  scope  of  his  employment  which  a 
rational  man  of  business  might  believe  that  a  rational  owner  would 
certainly  do  for  himself  if  he  were  present  under  the  circumstances 
at  hand.  And  even  if  the  acts  of  the  master  were  beyond  the 
ordinary  scope  of  his  authority,  they  may  be  ratified  by  his  prin- 
cipals and  every  ratification  is  the  equivalent  of  an  original 
specific  authority.  So,  while  it  is  a  general  rule  that  an  agent  may 
not  delegate  his  authority  the  master  may,  in  proper  cases,  appoint 
another  in  his  place  and  stead;  and  such  appointee  will  have  the 
like  powers  as  the  original  master.  Circumstances  may  even  arise 
where  the  master  may  sell  the  cargo  though  the  owner  may  be  in 
port  and  does  not  approve  his  action.  Thus  in  the  case  of  the 
Brewster,  95  Fed.  1000,  the  ship  had  a  cargo  of  coal.  After  com- 
mencing her  voyage  she  was  forced  to  put  back  in  port.  Part  of 
the  coal  had  become  wet  and  hable  to  spontaneous  combustion ;  it 
being  dangerous  to  proceed  with  it,  the  master  tendered  it  to  the 
shippers,  who  refused  to  receive  it.  He  thereupon  sold  it.  The 
Court  upheld  his  action  as  being  for  the  general  good  of  the  ship 
and  cargo.  This,  however,  was  in  the  exercise  of  the  master's 
duty  to  protect  the  safety  of  the  whole  ship  and  must  not  be  un- 
derstood as  modifying  the  rule  that  the  master,  when  no  considera- 
tions, except  those  relating  to  cargo,  are  in  question,  may  not 
substitute  his  judgment  for  that  of  the  owner  of  cargo,  where 
the  owner's  will  is  ascertainable.  It  should  be  noted  that  all  the 
master's  powers  in  regard  to  the  cargo  depend  on  the  necessity 


50  THE  LAW  OF  THE  SEA 

for  their  exercise  and  that,  as  long  as  that  does  not  arise,  he  is 
really  a  complete  stranger  to  the  cargo  between  lading  and  dis- 
charge. While  the  voyage  prospers  he  is  only  to  carry  it  and 
must  not  intermeddle  in  any  way. 

9.  Power  to  Sell  Vessel. —  Under  like  circumstances  of  neces- 
sity, the  master  may  sell  the  ship  herself,  on  a  home  shore  as  well 
as  abroad,  although  never  in  the  home  port.  Good  faith  and 
overwhelming  necessity  must  concur.  For  his  own  protection,  he 
should  have  a  thorough  examination  made  by  competent  surveyors 
and  their  sworn  report  stating  her  condition  and  advising  a  sale. 
In  some  places,  this  may  be  accomplished  through  a  court  of  admir- 
alty and  this  is  the  safest  way. 

This  subject  has  been  discussed  more  fully  under  the  caption 
"  Title  and  Transfer,"  §16,  "  Sales  by  Master."  The  case  of  the 
Amclie,  6  Wall.  18,  there  quoted,  is  the  leading  case.  It  should  be 
observed  that,  if  the  exigency  is  not  too  urgent  to  admit  of  the 
necessary  delay,  the  master  is  bound  to  communicate  with  the 
owner  before  selling  the  ship,  and  the  purchaser  is  bound  to  know 
the  circumstances  so  far  as  he  can  ascertain  them  by  reasonable 
inquiry.  He  will  not  acquire  a  good  title  if  the  emergency  did 
not  justify  the  sale,  provided  he  could  have  so  ascertained  by  in- 
vestigation. 

10.  Pov^er  to  Create  Liens. —  This  power  is  very  broad.  The 
master  has  an  implied  power  to  pledge  the  ship  for  all  her  neces- 
sities and  thus  to  create  all  classes  of  contract  Hens  upon  her  in 
the  absence  of  the  owner.  The  order  of  their  priority  is  governed 
by  the  rules  applicable  to  all  maritime  Hens  (see  Chapter  IX). 
He  may  create  liens  of  materialmen  for  supplies,  work,  labor  and 
repairs ;  of  sailors  for  their  wages ;  for  all  necessary  services  ren- 
dered the  ship ;  advances  of  money ;  dockage  ;  towage  ;  and  the  Hke. 
So  he  may,  involuntarily  create  liens  upon  her  for  torts,  as  by 
negligent  carriage  of  cargo,  collisions,  or  personal  injury.  The 
leading  exposition  of  law  on  this  subject  is  that  of  Justice  Story 
in  the  early  case  of  the  Aurora,  i  Wheat.  96,  decided  in  1816, 
wherein  it  was  said : 

The  law  in  respect  to  maritime  hypothecations  is,  in  general,  well 
settled.  The  master  of  the  ship  is  the  confidential  servant  or  agent  of 
the  owners,  and  they  are  bound  to  the  performance  of  all  lawful  con- 
tracts made  by  him,  relative  to  the  usual  employment  of  the  ship,  and 
the  repairs  and  other  necessaries  furnished  for  her  use.     This  rule 


THE  MASTER  51 

is  established  as  well  upon  the  implied  assent  of  the  owners  as  with 
a  view  to  the  convenience  of  the  commercial  world.  As,  therefore, 
the  master  may  contract  for  repairs  and  supplies,  and  thereby,  indi- 
rectly, bind  the  owners  to  the  value  of  the  ship  and  freight,  so,  it  is 
held  that  he  may,  for  the  like  purposes,  expressly  pledge  and  hypothe- 
cate the  ship  and  freight,  and  thereby  create  a  direct  lien  on  the 
same,  for  the  security  of  the  creditor.  But  the  authority  of  the  mas- 
ter is  limited  to  objects  connected  with  the  voyage,  and,  if  he  tran- 
scends the  prescribed  limits,  his  acts  become,  in  legal  contemplation, 
mere  nullities.  Hence,  to  make  a  bottomry  bond  executed  by  the 
master  a  valid  hypothecation  of  the  ship,  it  must  be  shown  by  the 
creditor  that  the  master  acted  within  the  scope  of  his  authority;  or, 
in  other  words,  it  must  be  shown  that  the  advances  were  made  for 
repairs  and  supplies  necessary  for  effectuating  the  objects  of  the 
voyage,  or  the  safety  and  security  of  the  ship ;  and  no  presumption 
should  arise  that  such  repairs  and  supplies  could  be  procured  upon 
any  reasonable  terms,  with  the  credit  of  the  owner  independent  of  such 
hypothecation.  If,  therefore,  the  master  have  sufficient  funds  of 
the  owner  within  his  control,  or  can  procure  them  upon  the  general 
credit  of  the  owner,  he  is  not  at  liberty  to  subject  the  ship  to  the 
expensive  and  disadvantageous  lien  of  an  hypothecatory  instru- 
ment. 

II.  Duties  on  Disaster. —  If  the  ship  becomes  stranded,  dis- 
abled or  wrecked,  the  master  is  bound  to  use  all  reasonable  efforts 
to  save  all  that  may  be  rescued  out  of  the  disaster.  The  maritime 
law  contemplates  that  he  must  be  the  last  man  to  leave  the  ship  m 
every  sense  of  the  expression.  He  must  be  diligent  to  obtain  the 
aid  of  salvors  and  to  protect  the  property  in  his  charge.  As  far 
as  may  be,  the  cargo  must  be  saved,  stored  and  transhipped  to  its 
destination.  The  crew  must  have  provision  made  for  return  and 
the  wreck  itself  preserved  as  far  as  it  is  of  value.  He  cannot  give 
away  any  of  the  property  or  needlessly  sacrifice  any  of  it.  He 
should  promptly  communicate  with  his  owners  and  underwriters, 
both  ship  and  cargo,  and,  until  lawfully  superseded,  has  all  the 
authority  which  the  necessities  of  the  situation  demand. 

While  the  master  is  bound  to  follow  instructions  as  to  the  course 
of  his  voyage,  and  may  not  deviate  unless  forced  to  do  so  by 
stress  of  weather  or  for  the  safety  of  vessel,  crew  or  cargo,  he 
may  always  deviate  from  his  course  for  the  purpose  of  saving 
life.  He  is  not  bound  to  lie  by  or  delay  his  voyage  for  the  pur- 
pose of  preserving  the  property  of  third  persons,  though  he  may 
deviate,  in  the  exercises  of  a  sound  discretion,  to  save  property 
in  peril. 


52  THE  LAW  OF  THE  SEA 

12.  Log  Book  and  Protests. —  The  log  book  is  the  ship's  jour- 
nal in  which  is  entered  her  position  from  day  to  day,  winds,  cur- 
rents, sea,  course,  speed,  and  all  other  matters  of  importance  in 
relation  to  the  vessel.  The  entries  in  it  should  be  regularly  and 
correctly  made,  as  in  the  regular  course  of  business,  and  when  so 
kept,  it  will  become  a  record  of  great  importance  in  all  matters 
relating  to  the  ship's  business  and  litigation.  While  the  entries 
may  be  customarily  made  by  the  mate  or  other  subordinate  officer, 
the  master  should  see  that  they  are  properly  kept  up  and  satisfy 
himself  of  their  correctness  as  he  is  primarily  responsible  for  all 
the  transactions  of  the  voyage.  The  statutes  (U.  S.  Comp.  St. 
1916,  §8036)  require  every  vessel  making  foreign  voyages,  or  be- 
tween Atlantic  and  Pacific  ports,  to  have  an  official  log  book  and 
charge  the  master  with  twelve  classes  of  entries  therein,  under 
penalties. 

All  cases  of  offenses  or  of  misconduct  by  members  of  the 
crew  are  required  to  be  recorded ;  also  all  cases  of  illness, 
death,  birth  and  marriage  on  board;  the  name  of  any  sea- 
man who  ceases  to  be  a  member  of  the  crew ;  the  wages  of  any 
seaman  who  dies  during  the  voyage ;  the  sale  of  the  effects  of 
any  such  seaman,  and  a  description  of  any  collision  that  may 
occur. 

In  introducing  a  ship's  log  in  evidence,  it  must  be  proved  in  the 
same  manner  as  any  other  document;  that  is  to  say,  it  enjoys  no 
special  evidentiary  status. 

In  case  of  damage  or  disaster  during  the  voyage,  or  suspicion 
thereof,  the  master  should  within  twenty-four  hours  of  his 
arrival  in  port  cause  a  notary  public  or  consul  to  "  note  a 
protest "  in  regard  to  the  fact ;  this  "  noted  protest "  should  be 
extended  before  a  notary  as  soon  thereafter  as  possible,  and  at 
any  rate,  on  arrival  at  destination  and  while  recollection  is  fresh. 
The  extended  protest  will  be  upon  the  usual  form  and  contain 
a  plain  account  of  the  misfortune  and  damage.  As  it  will  form 
the  basis  of  any  claim  of  underwriters  or  adjustment  of  dam- 
ages, great  care  should  be  taken  to  express  the  facts  clearly 
and  according  to  their  legal  results.  The  master  is  charged 
with  this  duty  and  should  execute  the  protest,  together  with  his 
officers  and  such  of  the  crew  as  have  knowledge  of  the  facts 
involved. 


THE  MASTER  53 


REFERENCES  FOR  GENERAL  READING 

Comtncntarics,  Kent,  III,  Lecture  XLVI. 

Shipping  and  Admiralty,  Parsons,  Vol.  II,  Chapter  XIV. 

Sea  Laws,  Jacobsen,  Book  II,  Chapter  I. 

Niagara,  21  How.  7. 

Nebraska,  75  Fed.  598. 

Rupert,  213  Fed.  263. 

Lombard  S.  S.  Co.  v.  Anderson,  134  Fed.  568. 

Spedden,  184  Fed.  283. 

Yarkand,  120  Fed.  887. 

Ponce,  178  Fed.  76. 

Jenkins,  S.  S.  Co.  v.  Preston,  186  Fed.  108. 

Ancaios,  170  Fed  106. 

Aguan,  48  Fed.  320. 

Trigg,  37  Fed.  708. 


CHAPTER  V 
SEAMEN 

I.  Favored  in  Maritime  Law. —  The  general  maritime  law  has 
always  endeavored  to  protect  the  rights  of  seamen  and  its  solicitude 
for  their  welfare  has  been  expressed  in  the  laws  of  all  commercial 
countries.  They  are,  as  Justice  Story  said  in  Brown  v.  Lull,  2 
Sumner  449,  "  a  class  of  persons  remarkable  for  their  rashness, 
thoughtlessness  and  improvidence.  They  are  generally  necessi- 
tous, ignorant  of  the  nature  and  extent  of  their  own  rights  and 
privileges,  and  for  the  most  part  incapable  of  duly  appreciating 
their  values.  They  combine  in  a  singular  manner,  the  apparent 
anomalies  of  gallantry,  extravagance,  profusion  in  expenditure, 
indifference  to  the  future,  credulity  which  is  easily  won,  and  confi- 
dence which  is  readily  surprised.  Hence  it  is,  that  bargains  be- 
tween them  and  shipowners,  the  latter  being  persons  of  great 
intelligence  and  shrewdness  in  business,  are  deemed  open  to  much 
observation  and  scrutiny;  for  they  involve  great  inequality  of 
knowledge,  of  forecast,  of  power,  and  of  condition.  Courts  of 
Admiralty,  on  this  account,  are  accustomed  to  consider  seamen  as 
peculiarly  entitled  to  their  protection ;  so  that  they  have  been,  by 
a  somewhat  bold  figure,  often  said  to  be  favorites  of  Courts  of 
Admiralty.  In  a  just  sense,  they  are  so,  so  far  as  the  maintenance 
of  their  rights,  and  the  protection  of  their  interests  against  the 
effects  of  the  superior  skill  and  shrewdness  of  masters  and  owners 
of  ships  are  concerned." 

Hence,  from  the  ancient  sea  codes  to  the  most  recent  legislation, 
there  is  a  constant  provision  for  their  welfare  and  protection. 
Their  occupation  is  an  honorable  one  and  has  its  privileges  accor- 
dingly ;  it  is  also  one  of  great  responsibility  and  has  its  duties  and 
the  law  has  both  in  mind. 

2.  Who  Are  Seamen? — The  word  "seaman"  includes  every 
person  (apprentices  excepted)  who  shall  be  employed  or  engaged 
to  serve  in  any  capacity  on  board  of  any  vessel  belonging  to  any 
citizen  of  the  United  States  (R.  S.  4612).     A  question  sometimes 

54 


SEAMEN  55 

arises  whether  a  particular  person  occupies  the  status  of  seaman. 
Some  discussion  of  this  will  be  found  in  §13  of  this  chapter,  and 
in  Chapter  4,  §2. 

3.  Contract. —  Their  relation  to  the  shipowner  is  one  of  con- 
tract. The  contract  is  usually  in  the  form  of  Shipping  Articles 
and  in  writing.  A  form  for  use  in  foreign  trade  (with  some  ex- 
ception) is  given  in  Rev.  St.  §4511  as  amended.  For  other  voy- 
ages it  is  not  always  essential  that  the  contract  be  in  writing. 
What  its  form  and  language,  the  law  will  practically  construe  it  as 
containing  certain  underlying  engagements  by  both  parties; — on 
the  part  of  the  owner  and  master,  that  the  wages  shall  be  paid; 
the  voyage  legal ;  the  ship  seaworthy  and  fully  equipped  and  sup- 
plied ;  the  voyage  definite  and  without  deviation ;  the  treatment  by 
the  officers,  decent  and  humane ;  the  food  sufficient ;  care  and  cure 
in  event  of  injury  or  sickness;  and  safe  return  to  their  own  coun- 
try;—  and  on  the  part  of  the  seamen,  to  exert  themselves  to  the 
utmost  in  the  service  of  the  ship;  to  have  sufficient  training 
and  health  for  the  positions  which  they  profess ;  to  report  on 
board  at  the  proper  time  and  place  and  remain  in  the  service 
until  their  engagements  are  performed ;  to  be  obedient  to  all 
lawful  commands  of  the  master  and  their  superior  officers ; 
and  to  assist  in  maintaining  good  order  and  discipline  throughout 
the  ship. 

4.  Wages  Secured. —  The  payment  of  wages  is  amply  secured. 
They  have  a  prior  lien  upon  the  ship  and  freight  which  will  attach 
to  her  last  plank.  The  master  and  the  owner  are  personally  liable 
and  there  can  be  no  limitation  of  liability  in  this  respect.  Such 
wages  are  exempt  from  garnishment  or  attachment  by  creditors  of 
the  sailor  and  he  may  sue  for  them  without  giving  security  for 
costs.  If  wages  are  unlawfully  withheld,  he  may  have  double 
for  each  day's  delay. 

5.  Forfeitures  and  Punishments. —  On  the  other  hand,  the  sea- 
men must  perform  their  part  of  the  contract.  Refusal  or  neglect 
to  work  entails  loss  of  wages,  and  wages  are  not  due  during  a  per- 
iod of  lawful  imprisonment  (Rev.  St.  §4528).  Desertion  entails 
forfeiture  of  clothes  left  on  board  and  wages  earned;  absence 
without  leave,  not  amounting  to  desertion,  forfeits  two  days'  pay 
and  expenses  of  a  substitute;  quitting  the  ship  before  she  is  in 
security  means  a  forfeiture  of  not  more  than  one  month's  pay; 
willful  disobedience  at  sea  will  be  punished  by  confinement  in  irons 


56  THE  LAW  OF  THE  SEA 

and  further  imprisonment  on  shore  with  loss  of  4  days'  pay.  If 
continued,  12  days'  pay  is  forfeited  for  each  oflfense  (Rev.  St. 
§4596)  ;  assaulting  the  master  or  mate  and  willfully  damaging  the 
ship  or  cargo  are  punishable  criminally  by  imprisonment  and  for- 
feiture of  wages. 

Corporal  punishment  is  no  longer  permitted ;  its  infliction  is  a 
misdemeanor  punishable  by  the  courts,  and  it  also  renders  the 
owner  and  master  liable  for  damages.  The  master  may,  however, 
use  a  deadly  weapon  when  necessary  to  suppress  mutiny  but  only 
when  mutiny  exists  or  is  threatened. 

The  laws  of  the  United  States  on  the  subject  of  Merchant  Sea- 
men will  be  found  in  detail  in  Title  LHI  of  the  Revised  Statutes 
and  are  collected  with  the  modern  amendments,  including  the  La 
Follette  Seamen's  Act  of  March  4,  191 5,  and  with  full  annotations 
in  Volume  7  U.  S.  Compiled  Statutes,  1916,  pages  8772  to  8924. 
The  Seaman's  Act  of  March  4,  191 5,  is  also  found  in  38  St.  at  L. 
11-64. 

6.  Personal  Injuries. —  Where  a  sailor  is  injured  in  the  service 
of  the  ship  he  is  entitled  to  care  and  cure  at  the  expense  of  the 
ship,  irrespective  of  any  question  of  the  negligence  of  any  member 
of  the  ship's  company  and  irrespective  of  whether  the  seaman  was 
guilty  of  contributory  negligence,  but  ordinarily,  he  can  not  re- 
cover damages  unless  fault  can  be  brought  home  to  the  owner. 
He  will  also  be  entitled  to  his  wages  for  the  trip  or  voyage  on 
which  the  injury  occurred,  unless  discharged  by  voluntary  consent 
under  §4581  Rev.  St.  before  the  voyage  ends. 

In  very  recent  years  repeated  assaults  have  been  made  upon  the 
long  established  rule  which  prevented  seamen  from  recovering 
on  account  of  injury  or  death  in  line  of  duty.  In  Southern  Pa- 
cific Co.  V.  Jensen,  244  U.  S.  205,  an  employee  engaged  in  mari- 
time work  attempted  to  recover  damages  for  a  maritime  injury 
pursuant  to  the  Workmen's  Compensation  law  of  New  York. 
The  Supreme  Court  held,  that  "  Congress  has  paramount  power 
to  fix  and  determine  the  maritime  law  which  shall  prevail  through- 
out the  country,"  and  that  in  so  far  as  the  Workmen's  Compensa- 
tion law  of  a  state  sought  to  confer  upon  seamen  rights  incon- 
sistent with  the  general  maritime  law,  the  state  Workmen's  Com- 
pensation law  was  unconstitutional.  Thereupon  Congress  by  the 
act  of  October  6,  1917,  undertook  to  confer  upon  suitors  in  ad- 
miralty "  the  rights  and  remedies  under  the  Workmen's  Com- 


SEAMEN  57 

pensation  Law  of  any  state."  Thereafter  in  Knickerbocker  Ice 
Co.  V.  Stewart,  decided  May  17,  1920,  the  Supreme  Court  of  the 
United  States  held  that  the  act  of  Congress  of  1917  was  destruc- 
tive of  the  uniformity  of  the  principles  of  admiralty  law,  which 
the  Constitution  sought  to  preserve,  and  was  therefore  beyond 
the  power  of  Congress  to  enact.  Therefore,  up  to  May  17,  1920, 
the  date  of  the  decision  of  Knickerbocker  Ice  Co.  v.  Stewart,  the 
old  rule  of  admiralty  whereby  sailors  could  not  ordinarily  re- 
cover damages  for  injuries  in  the  course  of  their  employment  had 
successfully  withstood  all  attacks  by  state  legislatures  and  by 
Congress  and  remained  the  law.  However,  three  weeks  after  the 
decision  in  Knickerbocker  Ice  Co.  v.  Stewart,  Congress,  by  the 
Merchant  Marine  Act  of  June  5,  1920  (see  Appendix),  enacted 
the  following : 

That  any  seaman  who  shall  suffer  personal  injury  in  the  course  of 
his  employment  may,  at  his  election,  maintain  an  action  for  damages 
at  law,  with  the  right  of  trial  by  jury,  and  in  such  action  all  statutes 
of  the  United  States  modifying  or  extending  the  common-law  right  or 
remedy  in  cases  of  personal  injury  to  railway  employees  shall  apply; 
and  in  case  of  the  death  of  any  seaman  as  a  result  of  any  such  per- 
sonal injury  the  personal  representative  of  such  seaman  may  maintain 
an  action  for  damages  at  law  with  the  right  of  trial  by  jury,  and  in 
such  action  all  statutes  of  the  United  States  conferring  or  regulating 
the  right  of  action  for  death  in  the  case  of  railway  employees  shall  be 
applicable.  Jurisdiction  in  such  action  shall  be  under  the  court  of 
the  district  in  which  the  defendant  employer  resides  or  in  which  his 
principal  office  is  located. 

This  provision,  which  seeks  to  confer  upon  seamen  the  rights 
enjoyed  by  railway  employees  under  the  Federal  Compensation 
Act,  has  not  yet  been  construed  by  the  courts. 

The  rights  of  railway  employees  thus  conferred  upon  seamen 
are  those  given  by  acts  of  Congress  approved  April  22,  1908,  and 
April  5,  1910.  These  acts  gave  to  the  employees  of  railroads  en- 
gaged in  interstate  and  foreign  commerce,  a  right  of  action  against 
the  employing  carrier  in  case  of  injury  or  death  of  the  employee, 
notwithstanding  that  the  accident  may  have  been  caused  by  acts 
of  a  fellow  servant  or  may  have  been  due  to  one  of  the  risks 
naturally  incident  to  the  employment,  and  notwithstanding  that 
the  plaintiff  may  have  been  guilty  of  contributory  negligence,  al- 
though in  the  latter  case  the  damages  are  to  be  diminished  in 
proportion  to  the   amount   of   the   employee's   negligence.     Suit 


58  THE  LAW  OF  THE  SEA 

may  be  brought  in  the  state  or  federal  courts,  which  are  given  con- 
current jurisdiction  in  such  cases. 

It  should  be  observed  that  under  neither  the  Merchant  Marine 
Act  nor  the  Railway  Employers'  Liability  Acts  is  the  jurisdiction 
to  be  exercised  by  the  court  sitting  in  admiralty.  The  jurisdic- 
tion invoked  is  that  of  the  courts  of  common  law. 

Where,  however,  there  is  negligence  on  the  part  of  the  ship- 
owner in  providing  a  seaworthy  ship,  or  on  the  part  of  the  officer 
in  caring  for  the  injured  man,  the  admiralty  will  award  damages ; 
if  there  has  been  contributory  negligence,  it  will  not  prevent  re- 
covery but  the  damages  will  be  apportioned  or  divided  (The  Max 
Morris,  137  U.  S.  i). 

The  principle  on  which  vessels  are  held  liable  for  injuries  to 
seamen  due  to  unseaworthiness  is  simply  an  application  of  the 
rule  of  law  that  every  master  is  bound  to  provide  his  servant  with 
a  safe  place  to  work ;  that  is  to  say,  a  place  as  safe  as  any  prudent 
man  would  provide  for  the  performance  of  work  of  similar  char- 
acter, and  that  failure  to  provide  such  a  safe  place  is  actionable 
negligence.  In  the  Joseph  B.  Thomas,  86  Fed.  658,  it  was  held 
that  where  an  employee  on  a  vessel  placed  an  empty  keg  on  a  pile 
of  hatchway  covers  in  such  a  position  that  an  accidental  jar  caused 
it  to  fall  in  the  hatch  and  injure  a  stevedore,  the  master  and  the 
owners  were  liable  and  the  ship  was  held  for  violation  of  the  duty 
to  provide  a  safe  place  to  work. 

7.  Duties  in  Disaster. —  In  case  of  shipwreck  or  disaster  a 
sailor  is  bound  to  do  all  he  can  for  the  safety  of  the  ship  and 
cargo.  This  is  in  the  line  of  his  duty  and  does  not  merit  extra 
pay.  His  lien  for  wages  attaches  to  the  last  plank  of  the  ship 
but  he  must  do  his  share  of  the  work  required  to  preserve  it. 

In  the  Shawnee,  45  Fed.  769,  the  ship  had  suffered  greatly  from 
a  severe  storm  and  went  under  Mackinac  Island  for  shelter. 
Much  extra  work  was  required  by  the  crew  and  when  the  time 
came  to  proceed  on  the  voyage  they  told  the  master  that  they  would 
not  go  on  unless  an  extra  allowance  of  $50  each  was  guaranteed. 
Under  the  stress  of  circumstances  the  master  was  constrained  to 
acquiesce  in  the  demand,  but  on  arrival  the  owners  refused  to  pay 
this  extra  amount  although  they  tendered  the  regular  wages.  The 
sailors  thereupon  libeled  the  ship,  but  the  Court,  in  a  very  em- 
phatic opinion,  declared  that  their  conduct  had  amounted  to  mutiny 
and  that  their  wages  should  be  entirely  forfeited. 


SEAMEN 


59 


Numerous  decisions  illustrate  these  rules. 

In  the  Troop,  ii8  Fed.  769,  a  sailor  fell  from  a  yardarm  and 
fractured  his  thigh  shortly  after  the  ship  sailed ;  the  captain  might 
have  put  him  in  the  port  hospital  but  instead  applied  splints  him- 
self and  sent  the  man  to  his  bunk ;  he  did  nothing  more  for  him 
until  the  vessel  arrived  at  her  destination,  thirty-six  days  after, 
and  even  then  neglected  him  for  an  additional  five  days  before  sup- 
plying proper  medical  care.  The  sailor  suffered  greatly  during  the 
voyage  and  became  permanently  injured.  The  Court  held  that 
the  ship  was  liable  for  the  master's  failure  to  observe  the  rule  of 
care  to  an  injured  sailor  and  awarded  him  $4,000  with  6  per  cent 
interest. 

In  the  Margharita,  140  Fed.  820,  the  ship  sailed  from  a  port  in 
Chili  for  Savannah.  WTiile  off  the  west  coast  of  South  America 
and  about  to  round  Cape  Horn  a  sailor  lost  his  footing  aloft  and 
was  precipitated  into  the  sea.  As  he  struck  the  water  a  shark, 
or  some  other  marine  monster,  bit  off  his  leg  at  the  knee,  but  he 
was  rescued  by  another  of  the  crew  who  jumped  after  him.  The 
ship  was  then  about  7,000  miles  from  her  destination.  The  mas- 
ter gave  the  sailor  all  the  attention  which  the  ship  afforded  and 
controlled  the  hemorrhage  and  inflammation  by  placing  the  stump 
in  tar ;  he  continued  to  give  him  regular  attention  during  the  voy- 
age, detailed  a  man  to  supply  his  wants  and  provided  him  with  a 
suitable  diet ;  on  arrival  at  Savannah  he  was  immediately  sent  to 
the  hospital.  The  Court  held  that  there  could  be  no  further  re- 
covery inasmuch  as  the  master  had  fully  discharged  all  the  obli- 
gations of  the  rule, 

8.  Offenses  of  Seamen. —  Discipline  being  essential  to  the  wel- 
fare of  the  ship  and  all  on  board,  the  maritime  law  punishes  of- 
fenses of  seamen  against  its  code.  Disobedience  or  misconduct  in 
a  sailor  can  not  be  tolerated  or  the  ship  would  be  in  constant  peril 
and  its  business  frustrated.  But  the  punishment  must  be  reason- 
able and  in  proportion  to  the  offense.  The  law  will  not  endure 
tyranny  or  cruelty  in  any  form.  Flogging  is  abolished  and  pro- 
hibited by  law  and,  generally,  the  only  forms  of  punishment  which 
may  now  be  employed  are  forfeiture  of  wages  or  clothing,  con- 
finement on  board,  disrating  and  imprisonment  on  shore.  Where 
an  emergency  arises,  instant  obedience  may  be  compelled  by  force 
on  the  part  of  the  officers  and  master,  according  to  the  necessity  of 
the  case,  even  to  the  taking  of  life,  but  cases  of  this  kind  are  rare. 


6o  THE  LAW  OF  THE  SEA 

In  any  event,  the  punishment  must  be  according  to  the  exigency 
and  not  excessive  or  brutal.  Unlawful  orders  may  be  disregarded 
and  even  the  master  arrested  and  confined  if  he  attempts  to  com- 
mit a  felony ;  but,  in  general,  the  sailor  must  not  attempt  to  take 
the  law  into  his  own  hands  and  it  will  be  more  judicious  to  submit 
to  harsh  treatment  and  seek  his  redress  later  in  the  courts. 

The  ordinary  offenses  of  seamen  are  classed  as  mutiny,  inciting 
revolt,  desertion,  disobedience,  assaults,  theft,  fighting,  and  tam- 
pering with  the  cargo;  but,  in  addition,  they  are  liable  for  all 
crimes  and  offenses  which  would  be  punishable  as  such  if  com- 
mitted on  shore. 

9.  When  Entitled  to  Leave  Ship. —  The  sailor  is  not  bound 
to  continue  in  the  ship  when  she  becomes  unseaworthy  because  his 
contract  of  service  is  based  upon  the  condition  that  the  ship  is  and 
shall  be  seaworthy.  When  such  a  condition  exists,  the  crew  is 
entitled  to  apply  respectfully  to  the  offipers  and  urge  that  the  ship 
return  to  port ;  if  in  port,  they  may  request  a  survey  and,  if  unsea- 
worthiness is  declared,  the  consul  has  authority  to  give  them  their 
discharge. 

ID,  Desertion. —  In  the  maritime  law,  desertion  consists  in 
quitting  the  ship  and  service  by  a  sailor,  without  leave  and  against 
his  duty,  without  an  intent  to  return.  If  not  justified,  it  works 
a  forfeiture  of  wages.  The  mitigating  circumstances  must  be 
such  as  amount  to  a  reasonable  excuse,  founded  on  gross  miscon- 
duct of  the  master  or  hard  usage.  Slight  and  transient  causes 
will  not  answer,  especially  where  the  desertion  appears  to  have 
been  deliberate  and  premeditated,  and  not  the  result  of  sudden 
impulse.  It  was  formerly  the  law  that  a  deserting  seaman  might 
be  arrested  and  imprisoned  on  shore  by  local  magistrates  on  the 
complaint  of  the  master  and  so  compelled  to  return  to  his  service 
(Robertson  v.  Baldwin.  165  U.  S.  275).  Recent  legislation,  how- 
ever, has  repealed  the  older  statutes  and  there  are  now  no  laws  of 
the  United  States  which  authorize  the  imprisonment  of  seamen 
deserting  from  vessels  owned  by  citizens  of  the  United  States. 
This  is  probably  true  also  in  the  case  of  foreign-owned  vessels 
within  American  ports  i^Ex  parte  Larsen,  233  Fed.  708).  Among 
the  causes  which  have  been  held  to  justify  desertion  are  sickness, 
unwholesome  food,  cruel  treatment,  deviation  and  unseaworthi- 
ness. But  the  justification  must  be  clearly  shown,  for  it  is  a  seri- 
ous thing  to  quit  the  ship,  and  the  law  will  not  permit  it  unless 


SEAMEN  6i 

the  reasons  are  sound  and  substantial.  Of  course,  besides  the 
forfeiture  of  wages  which  desertion  entails,  the  deserter  will  be 
liable  to  the  owner  for  such  damages  as  his  breach  of  contract  may 
cause.  The  offense  may  be  committed  by  any  member  of  the 
ship's  company. 

11.  Self-defense. —  Generally  speaking,  the  remedy  of  the  sailor 
for  violence  inflicted  upon  him  on  shipboard  is  to  be  sought  in  the 
courts  of  law  alone.  The  exigencies  of  discipline  require  that, 
for  the  common  good,  authority  on  shipboard  should  not  be  re- 
sisted. Nevertheless  cases  occur  where  the  right  of  self-defense 
may  be  lawfully  claimed.  Where  the  master  assaults  a  seaman, 
the  latter  may  endeavor  to  escape;  if  pursued  and  escape  be  im- 
possible, and  the  assault  continued,  he  may  use  necessary  and 
equivalent  force  for  his  own  protection. 

It  should  be  remembered  that  the  power  of  punishment  on 
shipboard  is  vested  in  the  master  personally  and  that  the  law 
does  not  permit  his  delegating  it  to  others.  A  mate  has  no  legal 
right  to  enforce  his  orders  by  beating  one  of  the  crew.  Up  to 
about  seventy  years  iago  corporal  punishment  of  seamen  was  per- 
mitted by  law,  owing  to  the  nature  and  supposed  necessities  of  the 
service,  and  no  doubt  officers  find  it  hard  to  give  it  up.  Courts 
of  admiralty  endeavor  to  deal  with  these  cases  in  a  practical  way. 
Altercations  and  assaults  between  master  and  crew  have  never  been 
treated  by  them  like  those  redressed  in  the  common  law  courts, 
where  the  slightest  blow  may  be  treated  as  a  trespass  to  one's 
dignity  and  feelings  of  self-respect.  The  crew  are  to  be  pro- 
tected from  injury  and  the  maritime  law  will  amply  vindicate  all 
beatings,  woundings  and  maltreatment,  criminally  and  civilly. 
The  right  of  self-defense  is  only  a  last  resort  and  will  seldom  need 
to  be  invoked. 

12.  Lien  for  Wages. —  The  seamen  have  a  maritime  lien  for 
their  wages  in  preference  over  all  other  liens  except  for  salvage. 
They  are  said  to  be  the  wards  of  the  admiralty  and  it  endeavors 
to  see  them  paid  over  all  other  creditors  of  the  ship.  Thus  the 
lien  has  priority  over  towage,  claims  for  supplies  and  repairs, 
breach  of  contract,  and  port  dues.  It  will  not  be  superior  to  a 
lien  for  collision  damage,  if  their  negligence  contributed  to  the  dis- 
aster, at  least  as  far  as  prior  wages  are  concerned.  Subsequent 
wages,  earned  in  bringing  the  ship  back  to  port,  stand  on  a  dif- 
ferent footing. 


62  THE  LAW  OF  THE  SEA 

This  lien  is  said  to  inhere  in  the  last  plank  of  the  ship  and  will 
be  paid  in  preference  to  claims  for  penalties  against  the  ship  in 
behalf  of  the  United  States  and  port  dues. 

The  lien  for  wages  exists  in  the  home  port  of  the  vessel  as  well 
as  in  foreign  ports. 

Where  as  sometimes  in  the  case  of  a  fishing  voyage  the  crew 
has  an  interest  in  the  result  of  the  venture  this  does  not  affect  the 
right  to  liens. 

The  weight  of  authority  in  the  more  recent  decisions,  reversing 
the  older  rule,  is  to  give  a  lien  to  stevedores,  longshoremen,  watch- 
men and  ship  carpenters  against  foreign  vessels  (that  is  to  say 
vessels  not  in  the  home  port)  while  the  authorities  are  in  conflict 
as  to  whether  such  liens  lie  against  domestic  vessels. 

The  Merchant  Marine  Act  of  June  5,  1920,  which  is  printed 
in  full  in  the  Appendix,  §30,  Subsection  M,  expressly  confers  a 
lien  for  wages  of  stevedores,  "  when  employed  directly  by  the 
owner,  operator,  master,  ship's  husband,  or  agent  of  the  vessel, 
and  makes  no  distinction  between  the  home  port  and  any  other. 

In  the  Ole  Olson,  20  Fed.  384,  a  schooner  was  libeled  for  sea- 
men's wages  and  two  men  intervened  and  sought  to  recover  who 
had  been  employed  as  stone-pickers  by  the  master,  who  was  also 
managing  owner,  to  gather  stone  on  the  shores  of  Lake  Michigan 
and  assist  in  loading  the  stone  on  board  as  cargo  to  be  carried  to 
Chicago.  While  engaged  in  this  service  they  lived  and  slept  on 
the  vessel  as  she  lay  ofif  shore  and  when  the  weather  was  such  that 
stone  could  not  be  gathered,  the  schooner  would  run  into  port  and 
on  such  occasions  these  men  would  lend  a  hand  in  hoisting  sail. 
They  did  not  accompany  the  vessel  on  her  voyages  as  she  had  a 
full  crew  without  them.  The  only  question  was  whether  they 
rendered  maritime  services  and  were  therefore  entitled  to  the 
seaman's  lien  for  wages.  The  Court  held  that  they  were  not,  dis- 
tinguishing the  Ole  Olson  from  the  case  of  the  Ocean  Spray,  4 
Sawy,  105,  and  several  others.  In  the  ca^e  of  the  Spray  the  h- 
bellants  were  shipped  as  sealers  and  were  hired  to  take  seal  for 
the  vessel  at  a  stipulated  sum  per  month.  Their  contract  also 
bound  them  "  lend  a  hand  on  board  whither  they  were  wanted." 
On  the  voyage  they  helped  make  and  reef  sail,  heave  the  anchor 
and  clear  decks,  but  did  not  stand  watch.  They  also  procured 
driftwood  and  water  for  the  use  of  the  vessel.  They  thus  aided 
in  the  navigation  and  preservation  of  the  vessel  and  were  colabor- 


SEAMEN  63 

ers  In  the  leading  purpose  of  the  voyage.  *'  Upon  the  principle 
applicable  to  surgeons,  stewards,  cooks  and  cabin  boys  (all  of 
whom  are  entitled  to  the  lien)  they  were  to  be  considered  as 
mariners."  They  were  accordingly  entitled  to  their  maritime  lien 
on  the  vessel. 

13.  Shipping  Articles. —  The  law  provides  (U.  S.  Comp.  St. 
§8300-8314)  that  the  master  of  every  vessel  bound  from  a  port 
in  the  United  States  to  any  foreign  port  overseas,  or  vice  versa, 
shall  make  an  agreement,  in  writing  or  in  print,  with  each 
of  the  crew,  containing  particulars  of  the  nature  and  duration  of 
the  voyage;  the  number  and  description  of  the  crew;  the  time  at 
which  each  is  to  be  on  board ;  the  capacity  in  which  each  is  to 
serve ;  the  amount  of  wages  which  each  is  to  receive ;  the  scale  of 
provisions  which  are  to  be  furnished  to  each ;  any  regulations  as 
to  conduct  on  board,  fines,  short  allowances  and  other  lawful 
punishments  which  may  be  agreed  to ;  and  any  stipulations  as  to 
advances  and  allotments  of  wages,  or  other  matters  not  contrary 
to  law. 

Sections  8287-8297  provide  for  the  appointment  of  shipping- 
commissioners  in  such  ports  of  entry  and  ports  of  ocean  naviga- 
tion as  require  them ;  where  no  commissioners  are  appointed,  the 
collector  of  customs  or  his  deputy  may  so  act ;  the  duties  of  such 
commissioners  are  to  afiford  facilities  for  engaging  seamen  by 
keeping  a  register  of  their  names  and  characters ;  to  superintend 
their  engagements  and  discharge  according  to  law ;  to  provide 
means  for  securing  their  presence  on  shipboard  according  to 
their  engagements ;  to  facilitate  the  making  of  apprenticeships  to 
sea  service  and  to  perform  such  other  duties  relating  to  merchant 
seamen  and  merchant  ships  as  may  be  required  by  law.  Section 
4554  amended  by  the  Act  of  August  19,  1890,  provides  that  the 
commissioners  shall  arbitrate  disputes  between  owners  or  masters 
and  the  crew  on  mutual  application. 

Shipping  articles  should  be  in  the  printed  form  required  by  the 
statute  and  in  common  use ;  they  should  be  signed  by  each  seaman 
in  the  presence  of  a  shipping  commissioner,  in  duplicate,  and  one 
part  retained  by  him;  they  should  be  acknowledged  and  certified 
under  the  commissioner's  seal,  to  the  effect  that  each  understands 
what  he  has  subscribed  and,  while  sober,  and  not  in  a  state  of  in- 
toxication, acknowledges  it  as  his  free  and  voluntary  act ;  the  other 
duplicate  should  be  delivered  to  the  master  and  seamen  subse- 


64  THE  LAW  OF  THE  SEA 

quently  engaging  on  the  voyage  should  place  their  signatures 
thereon.  The  ship  and  also  its  officers  are  liable  to  penalties  for 
shipping  seamen  without  articles,  but  the  requirement  is  excepted 
in  the  case  of  vessels  engaged  in  the  coasting  trade  and  on  the 
Great  Lakes.  When  seamen  are  shipped  in  foreign  ports  where 
there  is  a  consular  officer  of  the  United  States  or  commercial 
agent,  the  master  must  obtain  his  sanction  to  the  engagement,  in 
substantially  the  same  manner  as  in  the  case  of  a  shipping  com- 
missioner at  home.  A  copy  of  the  articles,  with  the  signatures 
omitted,  must  be  posted  on  the  vessel  so  as  to  be  accessible  to  the 
crew,  under  penalty  of  one  hundred  dollars. 

Shipping  articles  for  vessels  in  the  coasting  trade,  in  less  de- 
tailed forms,  are  required  by  §8311  and  the  master  is  made  liable 
to  a  penalty  of  twenty  dollars  and  the  highest  rate  of  wages  for 
every  seaman  or  apprentice  carried  without  such  an  agreement. 
All  shipments  of  seamen  contrary  to  law  are  declared  void;  any 
seaman  so  shipped  may  leave  the  service  at  any  time  and  recover 
either  the  highest  rate  of  wages  of  the  port  from  which  he  shipped 
or  the  sum  agreed  to  be  paid  him  when  he  went  on  board. 

14.  Wages  and  Efifects. —  Sections  83i5-8337a  of  the  Com- 
piled Statutes  of  1916  and  the  Merchant  Marine  Act  of  1920 
(see  Appendix)  codify  the  law  in  these  respects.  The  right  to 
wages  and  provisions  commences  when  the  sailor  begins  work 
or  at  the  time  specified  in  the  shipping-articles,  whichever  happens 
first ;  the  right  is  in  no  way  dependent  on  the  earning  of  freight ; 
where  the  term  of  the  hiring  is  cut  short  by  loss  or  wreck  of  the 
vessel,  the  sailor  is  entitled  to  his  wages  up  to  that  time  but  no 
longer ;  he  is  to  be  ranked  as  a  destitute  seaman  and  given  trans- 
portation to  the  port  of  shipment  according  to  law ;  in  case  of 
improper  discharge  before  the  commencement  of  the  voyage  or  be- 
fore one  month's  wages  are  earned,  the  sailor  may  have  a  sum 
equal  in  amount  to  one  month's  wages  as  extra  compensation  over 
what  he  may  have  earned ;  the  right  to  wages  is  suspended  during 
the  time  a  seaman  unlawfully  refuses  to  work ;  on  coasting  voy- 
ages, wages  must  be  paid  within  two  days  after  the  termination  of 
the  articles  or  upon  discharge,  whichever  first  happens  ;  on  foreign 
voyages,  or  between  Atlantic  and  Pacific  ports,  within  twenty- 
four  hours  after  the  cargo  has  been  discharged,  or  within  four  days 
after  the  sailor  has  been  laid  off,  whichever  happens  first ;  and  in 
all  cases  he  may  have  at  least  one-third  of  the  balance  due  him 


SEAMEN  65 

when  he  is  discharged.  Every  master  and  owner  who  neglects  to 
pay  the  sailor  as  required  by  law,  without  sufficient  cause,  must  pay 
him  double  wages  for  every  day  during  which  payment  is  delayed 
beyond  the  periods  mentioned. 

Every  sailor  on  an  American  vessel  is  entitled  to  receive  from 
the  master,  at  every  port  where  the  vessel  loads  or  delivers  cargo 
during  the  voyage,  one-half  his  wages  then  earned;  the  demand, 
however,  may  not  be  Jiiade  of tener  than  once  in  five  days.  Failure 
to  so  pay  wages  releases  the  seaman  from  his  contract  and  foreign 
sailors  in  harbors  of  the  United  States  may  have  the  benchts  of 
this  provision. 

It  is  unlawful  to  pay  wages  in  advance,  either  to  the  sailor  or 
to  any  other  person  on  account  of  advances ;  ^  such  payments  con- 
stitute no  defense  to  a  subsequent  suit.  But  a  sailor  may  stipulate 
in  the  articles  for  an  allotment  to  his  grandparents,  parents,  wife, 
sister,  or  children,  such  allotment  to  be  in  writing  and  signed  and 
approved  by  the  commissioner. 

Sailors'  wages  are  not  subject  to  an  attachment  or  garnishment 
from  any  court  and  no  prior  assignment  of  wages  or  claim  for 
salvage  is  valid. 

1  In  Sandberg  v.  McDonald.  248  U.  S.  185,  the  Supreme  Court  by  a  five 
to  four  decision,  held  that  an  advance  made  to  a  sailor  before  shipping 
on  a  British  vessel,  being  lawful  under  British  law,  was  properly  deducted 
by  the  master  in  an  American  port  from  the  one-half  of  earned  wages 
demandable  by  the  seaman  in  such  port,  notwithstanding  such  advance 
was  unlawful  under  the  American  statute. 

Going  further  at  the  same  term  of  court  and  with  the  same  dissent,  the 
court  held  in  Neilson  et  al  v.  Rhine  Shipping  Co.,  248  U.  S.  205,  that  ad- 
vances to  seamen  shipped  on  an  American  vessel  in  a  foreign  port  were 
not  prohibited  by  the  statute.  The  effect  of  these  two  decisions  was  that 
the  prohibition  of  advances  to  seamen  upon  their  wages  was  confined  to 
American  ports,  but  the  Merchant  Marine  Act  of  June  5,  1920  (see  Ap- 
pendix) provides  that  if  an  advance  be  made  to  a  seaman  in  any  port, 
whether  foreign  or  domestic,  he  may  nevertheless,  recover  the  full 
wages  earned  by  him,  including  any  sum  that  may  have  been  advanced 
to  him.  In  other  words  he  may  recover  the  amount  advanced  over 
again.  Such  advances  are  prohibited  in  American  ports  whatever  the 
nationality  of  the  ship.  On  the  other  hand,  the  act  is  applicable  to  a 
vessel  in  an  American  port  no  matter  what  her  nationality.  Thus  in  a 
recent  case  of  Strathearn  S.  S.  Co.  v.  Dillon,  decided  March  29,  1920, 
the  Supreme  Court  unanimously  held  that  foreign  seamen  on  foreign 
vessels  in  American  ports  are  entitled  to  the  benefits  of  the  act  and  may 
demand  one-half  of  the  wages  earned,  notwithstanding  contractual  pro- 
visions to  the  contrary,  and  that  the  vessel  need  not  have  been  in  an 
American  port  five  days  before  the  seamen  may  make  the  wage  demand. 
To  entitle  the  seaman  to  make  the  demand  it  is  only  necessary  that  the 
vessel  shall  load  or  deliver  cargo  before  the  voyage  is  ended,  and  m  the 
port  where  the  demand  is  made;  that  the  voyage  shall  have  beeri  com- 
menced at  least  five  days  previously;  that  five  days  shall  have  lapsed  smce 
the  last  previous  demand. 


66  THE  LAW  OF  THE  SEA 

The  effects  of  deceased  seamen  must  be  taken  in  charge  by  the 
master;  if  he  thinks  fit,  he  may  cause  them  to  be  sold  at  auction  at 
the  mast  or  other  pubUc  auction ;  if  so,  an  entry  must  be  made  in 
the  log  book,  signed  by  the  master  and  attested  by  the  mate  and 
one  of  the  crew,  showing  the  amount  of  money  belonging  to  the 
party  in  question ;  a  description  of  each  article  sold  and  the  sum 
received  for  each ;  and  a  statement  of  the  balance  of  wages  due. 
If  the  vessel  proceeds  to  a  port  of  the  United  States,  the  master 
must  account  to  a  shipping  commissioner  within  forty-eight  hours. 
If  she  touches  at  a  foreign  port  first,  he  must  report  the  case  to 
the  United  States  consular  officer  there  and  conform  to  his  in- 
structions. Failure  to  observe  these  requirements  may  subject 
the  master  to  a  treble  liability  for  the  value  of  the  effects  involved. 
Unclaimed  proceeds  of  such  effects,  after  six  years,  are  converted 
into  the  Treasury  of  the  United  States  and  become  a  part  of  a  fund 
for  the  relief  of  disabled  seamen  of  the  merchant  marine. 

15.  Protection  and  Relief. —  Sections  8343-8376  of  the  Com- 
piled Statutes  of  1916  contain  numerous  provisions  for  the  pro- 
tection and  relief  of  sailors.  Shipping  commissioners  are  author- 
ized to  act  as  arbitrators  on  any  question  whatsoever  between  a 
master,  consignee,  agent  or  owner  and  any  of  the  crew,  if  both 
parties  agree  in  writing  to  submit  it  to  him ;  his  award  is  binding 
on  both  parties  and  any  document  under  his  hand  and  official  seal 
purporting  to  be  such,  submission  and  award  is  prima  facie  evi- 
dence thereof ;  in  any  proceedings  relating  to  wages,  claims  of 
discharge  of  sailors,  the  shipping  commissioner  has  many  of  the 
powers  of  a  court  in  regard  to  the  examination  of  witnesses 
and  production  of  documents. 

Where  complaint  is  made  that  a  vessel  is  unseaworthy,  the  mas- 
ter must  forthwith  apply  to  the  judge  of  the  district  court  for 
the  district  in  which  the  ship  may  be,  or  if  such  a  judge  is  not 
available,  to  some  justice  of  the  peace,  for  the  appointment  of 
surveyors ;  three  surveyors  may  be  then  appointed  whose  duty 
it  will  be  to  carefuly  examine  the  ship  and  report  their  findings  to 
the  judge,  or  justice ;  he  shall  thereupon  decide  whether  the  vessel 
is  fit  to  proceed,  or,  if  not,  whether  the  necessary  repairs  should 
be  made  where  she  is  lying  or  whether  it  is  necessary  for  her  to 
proceed  to  a  port  of  repair;  the  master  and  the  crew  are  bound 
to  conform  to  the  decision.  The  master  must  pay  all  the  costs 
of  such  survey  unless  it  is  decided  that  the  complaint  was  without 


SEAMEN  67 

foundation;  if  so,  the  costs,  to  be  ascertained  by  the  judge  or 
justice,  and  reasonable  damages  for  the  detention,  are  payable 
out  of  the  wages  of  the  parties  who  complain;  if  it  be  adjudged 
that  the  vessel  is  fit  to  proceed  on  her  intended  voyage,  or  if  after 
the  required  repairs  are  made  the  sailors  or  any  of  them  refuse  to 
continue  on  board,  their  wages  may  be  forfeited.  Similar  provis- 
ions obtain  when  the  ship  is  in  a  foreign  port ;  there  the  consul  is 
authorized  to  appoint  surveyors  or  inspectors ;  such  inspectors  in 
their  report  shall  also  state  whether  in  their  opinion  the  vessel 
was  sent  to  sea  in  an  unseaworthy  condition  by  neglect  or  design, 
or  through  mistake  or  accident;  if  by  neglect  or  design,  and  the 
consular  officer  approves  such  finding,  he  shall  discharge  such  of 
the  crew  as  requested  and  require  payment  by  the  master  of  one 
month's  extra  wages  or  sufficient  money  for  the  return  of  the 
crew  to  the  nearest  and  most  convenient  port  of  the  United  States ; 
if  the  defects  are  found  to  be  the  result  of  mistake  or  accident, 
and  the  master  shall  in  a  reasonable  time  remove  or  remedy  the 
cause  of  complaint,  then  the  crew  must  remain  on  board  and  dis- 
charge their  duty.  Sending  or  attempting  to  send  an  American 
ship  to  sea  in  such  an  unseaworthy  state  as  to  make  it  likely  that 
the  life  of  any  person  will  be  in  danger  is  a  misdemeanor  punish- 
able by  a  fine  not  to  exceed  $1,000  or  by  imprisonment  not  to  ex- 
ceed five  years,  or  both. 

Should  any  master  or  owner  neglect  to  provide  a  sufficient 
quantity  of  supplies  for  a  voyage  of  ordinary  duration  to  a  port 
of  destination,  and  thereby  cause  the  crew  to  accept  a  reduced 
scale,  he  will  be  liable  to  penalties  from  fifty  cents  to  one  dollar 
a  day  to  each  sailor  prejudiced  thereby;  any  three  or  more  of  the 
crew  of  a  vessel  in  deep-sea  service  may  complain  of  the  bad  qual- 
ity of  the  provisions  or  water  and  have  a  due  examination  made 
thereof,  and  if  deficiency  is  found  a  master  must  remedy  the  same 
under  a  penalty  of  not  more  than  $100;  every  American  vessel  in 
ocean  trade  shall  be  provided  with  medicines  and  antiscorbutics; 
must  keep  on  board  appropriate  weights  and  measures  and  be 
provided  with  at  least  one  suit  of  woolen  clothing  for  each  seaman, 
and  a  safe  and  warm  room  for  the  use  of  seamen  in  cold  weather ; 
they  must  also  be  provided  with  a  slop-chest  containing  a  comple- 
ment of  clothing  for  the  intended  voyage  for  each  seaman  em- 
ployed, including  everything  necessary  for  the  wear  of  the  sailor 
and  a  fair  supply  of  tobacco  and  blankets;  the  contents  of  the 


68  THE  LAW  OF  THE  SEA 

chest  shall  be  sold  from  time  to  time  to  any  and  every  sailor 
applying  therefor  for  his  own  use  at  a  profit  not  exceeding  lo 
per  cent,  of  the  reasonable  wholesale  value  at  the  port  of  shipment. 
The  statutes  also  contain  detailed  provisions  as  to  the  numbers 
and  qualifications  of  the  crew  for  vessels  of  various  sizes  and 
waters ;  also  as  to  ratings,  examinations  and  certificates  of  service ; 
also  as  to  wages  at  sea  and  against  undue  or  unnecessary  labor  on 
board ;  while  vessels  are  in  safe  harbors  no  sailor  can  be  required 
to  do  any  unnecessary  work  on  Sundays  or  holidays,  and  while 
in  port  nine  hours  constitute  a  day's  work. 

REFERENCES  FOR  READING 

Rights   and  Duties   of  Merchant   Seamen,   George   Ticknor   Curtis. 

Boston,  1841 ;  Little  &  Brown. 
Commentaries,  Kent,  III,  Lecture  XLVI. 
Shipping  and  Admiralty,  Parsons,  Vol.  II,  Chapter  XV. 
Master  and  Servant,  Labbatt,  I;  §  243-247;  §  251c;  §  416:  11;  §  489; 

504 ;  678-682  :  V ;  §  2006-2012. 
Ixion,  237  Fed.  142. 
Catalonia,  236  Fed.  554. 
Strathearn,  239  Fed.  583. 
Imberhorne,  240  Fed.  830. 
Chicago,  233  Fed.  538. 
S.  S.  Co.  v.  Schmidt,  241  U.  S.  245. 
Robertson  v.  Baldwin,  165  U.  S.  275. 
Ross  V.  Mclntyre,  140  U.  S.  453. 
Endora,  190  U.  S.  169. 
Dallemagne  v.  Moison,  197  U.  S.  169. 
Osceola,  187  U.  S.  190. 


CHAPTER  VI 
CARRIAGE  BY  SEA 

The  purpose  of  the  ship  is  the  carriage  of  goods  and  passengers 
and  the  earning  of  freight-  and  passenger-money.  The  under- 
lying purpose  of  the  maritime  law  is  to  facilitate  these  transactions 
and  provide  reciprocal  rights  for  the  parties  engaged  in  them, 
hence  the  ship  will  have  a  lien  on  the  cargo  for  its  freight,  demur- 
rage and  other  charges ;  and,  .correspondingly  the  cargo  will  have 
a  Hen  on  the  ship  for  any  damages  it  may  sustain  by  breach  of  the 
contracts  of  carriage.  A  ship  is  held  to  a  high  degree  of  care  for 
the  cargo  and  the  cargo-owner  must  be  prompt  in  his  relations  to 
the  ship. 

1.  Common  and  Private  Carriers. — ■  The  ship  may  be  either  a 
common  or  private  carrier  of  goods  or  of  passengers.  In  many 
respects  carriage  by  water  is  only  a  subdivision  of  the  general  law 
of  carriers  and  the  more  general  principles  apply  as  well  to  the 
ship  as  the  railroad. 

The  common  carrier  is  one  who  offers  to  carry  for  all  who  may 
choose  to  employ  him.  The  private  carrier  is  one  who  transports 
by  virtue  of  a  special  agreement.  The  private  carrier  appears 
more  frequently  in  water  carriage  than  in  land  transportation. 
Most  ships,  for  example,  carrying  bulk  cargoes  by  special  arrange- 
ment are  private  carriers.  Most  passenger  ships  are  common 
carriers  of  passengers.  Ships  carrying  miscellaneous  or  package 
freight,  and  running  over  regular  routes,  are  common  carriers. 
In  general  the  distinction  is  by  what  they  profess  or  offer  to  do, — 
whether  to  carry  generally  for  the  public,  or  only  by  special  agree- 
ments. 

2.  Liabilities. —  The  liability  of  a  private  carrier  may  be  more 
closely  limited  by  agreement  than  that  of  common  carrier,  but  in 
general  it  will  be  sufficient  to  consider  his  liability  as  that  of  a 
shipowner  carrying  goods  for  hire.  That  liability  is  practically 
very  stringent;  he  is  responsible  for  any  damage  to  the  goods  in 
his  charge  unless  he  can  show  that  it  was  occasioned  by  the  act  of 

69 


70  THE  LAW  OF  THE  SEA 

God  or  the  public  enemy,  subject  to  two  important  statutes, —  the 
Limited  Liability  Act  (Rev.  St.  §§4282-4289,  Act  of  June  26, 
1884)  elsewhere  considered,  and  the  Harter  Act  of  February  13, 
1893,  2'j  S.  445.  Under  this  last  mentioned  statute,  if  the  ship  is 
actually  seaworthy  in  all  respects  at  the  commencement  of  the 
voyage,  there  is  no  liability  for  losses  sustained  by  faults  or  errors 
in  her  navigation  or  management.  The  general  scope  of  the  Act 
is  to  prohibit  stipulations  in  the  bill  of  lading  which  curtail  the 
shipowner's  liability  for  negligence  in  the  proper  loading,  stowage, 
care  or  delivery  of  the  cargo  and  to  exempt  him  from  the  conse- 
quences of  faults  or  errors  in  navigation  or  management  if  the 
ship  was  seaworthy  when  the  voyage  began.  The  word  "  manage- 
ment "  does  not  include  acts  of  preparing  the  ship  for  the  voyage ; 
and  where  she  had  reached  her  destination  and  sank  while  being 
discharged  on  account  of  her  unstable  condition  and  a  broken 
coal  port,  the  fault  was  held  not  to  be  one  in  her  management. 

3.  Seaworthiness. — A  warranty  of  seaworthiness  underlies  all 
the  relations  of  ship  and  cargo.  This  means,  primarily,  that  the 
vessel  is  responsible  for  loss  or  damage  to  the  goods  if  she  was 
not  in  a  seaworthy  condition  when  she  commenced  the  voyage,  and 
if  the  loss  would  not  have  arisen  but  for  that  unseaworthiness. 
This  liability  may  frequently  involve  the  owner  personally,  as 
when  the  defect  is  attributable  to  his  own  fault  or  want  of  care. 
He  is  held  to  warrant  that  she  is  fit  to  carry  the  cargo  which  she 
loads  and  with  it  to  encounter  safely  whatever  perils  may  be 
reasonably  expected  to  ensue  and  assumes  liability  for  any  defects 
in  hull,  machinery  or  equipment,  even  if  not  discoverable  by  care- 
ful examination.  The  ship  must  be  fit  in  design,  structure,  condi- 
tion, and  equipment  to  encounter  the  ordinary  perils  of  the  voy- 
age. This  includes  a  competent  master  and  a  suflficient  crew.  The 
test  is,  of  course,  a  relative  one  and  depends  upon  the  facts  and 
circumstances  involved  in  each  particular  case.  A  ship  may  be 
perfectly  seaworthy  for  a  particular  cargo  and  voyage  and  quite 
unseaworthy  for  another.  It  is  frequently  said  that  the  warranty 
does  not  require  an  absolutely  perfect  ship  and  that  the  true  criter- 
ion is  that  degree  of  fitness  which  the  average  prudent  and  careful 
owner  requires  of  his  vessel  at  the  commencement  of  the  voyage, 
having  given  due  consideration  to  all  the  circumstances  which  may 
reasonably  be  anticipated  to  attend  it. 

In  the  case  of  the  Caledonia,  157  U.  S.  124,  it  appeared  that  the 


CARRIAGE  BY  SEA  71 

vessel  was  chartered  to  transport  cattle  from  Boston  to  Deptford, 
Sufficient  fodder  was  provided  for  fifteen  days,  a  longer  period 
than  the  usual  length  of  the  voyage,  being  all  the  fodder  customar- 
ily provided  for  such  voyages.  When  nine  days  out  from  Boston 
in  smooth  water,  the  propeller  shaft  broke  straight  across  in  the 
stem  tube.  The  breakage  was  due  to  weakening  of  the  shaft  in 
heavy  seas  on  previous  voyages.  Its  weakened  and  unfit  condition 
existed  when  the  vessel  put  to  sea  on  the  voyage  under  considera- 
tion, but  the  defect  was  invisible  and  could  not  have  been  de- 
tected by  usual  and  reasonable  means  if  the  shaft  had  been  taken 
out  and  examined.  No  negligence  on  the  part  of  the  owners  was 
proven.  Because  of  the  breakage  the  voyage  lasted  twenty-five 
days  and  the  cattle  were  put  on  short  allowance  of  food.  In  con- 
sequence they  were  landed  at  Deptford  in  emaciated  condition. 
They  were  sold  in  London  on  the  first  market  day  following  their 
arrival.  The  shipper  of  the  cattle  sustained  a  loss  due  to  their 
shrinkage  in  weight  and  to  a  fall  in  the  market  which  occurred 
during  the  period  of  delay.  Chief  Justice  Fuller  in  the  opinion 
of  the  court  reviewed  many  of  the  leading  English  and  American 
cases,  and  held : 

The  proposition  that  the  warranty  of  seaworthiness  exists  by  im- 
plication in  all  contracts  for  sea-carriage,  we  do  not  understand  to  be 
denied ;  but  it  is  insisted  that  the  warranty  is  not  absolute,  and  does 
not  cover  latent  defects  not  ordinarily  susceptible  of  detection.  If 
this  were  so,  the  obligation  resting  on  the  shipowner  would  be,  not 
that  the  ship  should  be  fit,  but,  that  he  had  honestly  done  his  best  to 
make  her  so.     We  cannot  concur  in  this  view. 

In  our  opinion,  the  shipowner's  undertaking  is  not  merely  that  he 
will  do  and  has  done  his  best  to  make  the  ship  fit,  but  that  the  ship 
is  really  fit  to  undergo  the  perils  of  the  sea  and  other  incidental  risks 
to  which  she  must  be  exposed  in  the  course  of  the  voyage;  and,  this 
being  so,  that  undertaking  is  not  discharged  because  the  want  of  fit- 
ness is  the  result  of  latent  defects. 

The  warranty  of  seaworthiness  implies  that  the  vessel  shall  be 
fit  for  the  particular  service  in  which  she  is  to  engage.  A  vessel 
intended  to  be  used  in  river  navigation  is  not  required  to  be  made 
fit  for  ocean  transportation.  Taking  into  consideration  the  nature 
of  the  voyage,  it  has  been  said  that : 

She  must  be  so  tight  that  the  water  will  not  reach  the  cargo;  so 
strong  that  these  ordinarv'  applications  of  external  force  will  not 
spring  a  leak  in  her  or  sink  her;  so  sound  that  she  will  safely  carry 


72  THE  LAW  OF  THE  SEA 

the  cargo  in  bulk  through  these  ordinary  shocks  to  which  she  must 
every  day  be  subjected.  If  she  is  capable  of  this,  she  is  seaworthy; 
if  she  is  not,  she  is  unfit  for  the  navigation  of  the  river.  (The  Keo- 
kuk, etc.  V.  Home  Ins.  Co.,  9  Wall.  526.) 

The  opinion  just  quoted  had  reference  to  a  barge  in  tow.  The 
Court  held  that  the  barge  was  considered  as  belonging  to  the  tug, 
which  had  her  in  tow,  and  that  the  warranty  of  seaworthiness  ex- 
tended to  the  barge  equally  with  the  tug. 

While  under  the  act  of  February  13,  1893,  {27  St.  at  L.  445, 
supra)  the  owner  is  relieved  of  liability  to  the  cargo  by  reason  of 
faulty  navigation,  the  employment  of  a  competent  master  and  crew 
is  implied  in  a  warranty  of  seaworthiness  and  the  owner  is  liable 
under  the  warranty  if  he  fail  to  employ  a  competent  personnel. 
In  other  words  the  relief  from  liability  occurs  where  the  owner 
had  employed  competent  men,  but  they  negligently  or  faultily  op- 
erated the  ship.  Thus  Justice  Clifford  in  Germania  Ins.  Co.  v. 
Lady  Pike,  21  Wall,  i,  said: 

(The  vessel)  must  be  provided  with  a  crew  adequate  in  number 
and  competent  for  their  duty  with  reference  to  all  the  exigencies  of 
the  intended  route,  and  with  a  competent  and  skillful  master,  of 
sound  judgment  and  discretion,  and  with  sufficient  knowledge  of  the 
route  and  experience  in  navigation  to  be  able  to  perform  in  a  proper 
manner  all  the  ordinary  duties  required  of  him  as  master  of  the 
vessel. 

4.  Loading  and  Stowage. —  These  are  done  in  accordance  with 
the  provisions  of  the  contract  of  carriage  or  custom  of  the  port 
at  which  the  cargo  is  taken  on  board.  Proper  loading  and  stow- 
age is  an  important  element  of  seaworthiness  of  the  ship.  The 
cargo  must  be  so  disposed  as  to  keep  her  trim  and  seaworthy  and 
also  so  that  one  portion  may  not  injure  another.  This  work  is 
frequently  done  by  stevedores,  whose  services,  when  employed  by 
the  ship,  are  now  recognized  as  maritime  and  secured  by  a  lien  on 
the  vessel.  They  are,  however,  subject  to  the  master's  control  and 
he  is  not  to  take  on  more  cargo  than  he  thinks  the  vessel  can  safely 
carry  nor  permit  its  stowage  to  interfere  with  the  general  safety  of 
the  adventure.  He  may  refuse  to  take  on  more  cargo  than  in  his 
honest  opinion  is  prudent,  and  must  not  permit  any  overloading  at 
all.  A  fair  test  is  the  depth  which  the  vessel  was  constructed  to 
draw  or  that  which  the  master  and  others  of  experience  on  the  spot 
believed  to  be  proper.     The  shipper  of  goods  by  sea  must  disclose 


CARRIAGE  BY  SEA  73 

their  real  character  and  value.  He  is  bound  to  know  whether  they 
have  explosive  or  other  dangerous  qualities,  and,  if  concealment 
has  been  practiced  by  him  on  the  shipowner,  he  will  be  liable  for  all 
the  damages  sustained  from  their  effects.  In  every  shipment  there 
is  an  implied  warranty  on  the  part  of  the  shipper  that  his  goods 
are  not  of  a  character  to  cause  injury  to  other  goods  on  board, 
unless  otherwise  specially  stipulated,  and  he  is  held  liable  for  all 
the  consequences  of  its  breach  ;  if  the  carrier  has  thereby  been 
obliged  to  compensate  other  shippers,  he  may  recover  over  against 
the  delinquent  what  he  was  so  compelled  to  pay. 

In  the  case  of  Barker  v.  The  Swallow,  44  Fed.  771,  a  small 
steamer,  in  use  in  the  lumber  trade  on  the  Great  Lakes,  took  a 
cargo  of  pine  boards,  laden  as  usual  on  deck.  She  encountered  a 
strong  wind  and  heavy  sea,  causing  her  to  roll  badly  so  that  a  por- 
tion of  the  lumber  slid  off  the  starboard  side  and  another  portion 
off  the  port  side  as  the  vessel  careened  in  either  direction.  It  was 
conceded  that  it  was  not  the  usage  to  lash  deck  loads  of  lumber 
vessels  with  ropes  or  chains,  but  with  ordinary  safe  loading  the 
boards  would  be  held  in  place  by  the  frictional  contact  of  their 
surfaces  under  the  weather  conditions  ordinarily  encountered  on 
Lake  Michigan.  The  libellant  (owner  of  the  lumber)  contended 
that  too  much  lumber  had  been  loaded  upon  the  deck  and  thereby 
made  her  top-heavy,  and  caused  her  to  roll  more  than  she  would 
have  done  had  she  not  been  overloaded  on  deck,  and  that  the 
rough  weather  encountered  did  not  amount  to  a  "  tempest."  The 
Court  held 

while  a  vessel  is  not  liable  for  the  loss  of  her  deck-load  when  it  is 
lost  by  stress  of  weather,  or  what  can  be  properly  called  "  a  peril  of 
the  sea,"  yet,  if  she  takes  on  so  heavy  a  deck-load  as  to  become  top- 
heavy,  and  endangers  lass  of  the  deck-load,  or  puts  it  in  peril  in  an 
ordinary  wind,  or  anything  less  than  a  gale  of  wind,  or  such  stress  of 
weather  as  is  clearly  unusual,  it  should,  I  think,  be  accounted  bad 
stowage  and  negligence.  Overloading  the  vessel  so  as  to  render  her 
unmanageable,  or  susceptible  of  becoming  unmanageable,  by  such  a 
wind  as  is  shown  to  have  prevailed  on  the  night  in  question,  is,  I 
think,  a  manifest  negligence  on  the  part  of  the  carrier,  and  such  as 
should  not  acquit  him  of  liability  if  the  cargo  is  lost. 

In  this  case  there  was  testimony  that  the  vessel  had  carried  much 
heavier  deck  cargo  in  safety,  but  the  Court  considered  that  this 
proved  no  more  than  her  good  luck. 

Where  the  particular  method  of  stowage  is  determined  by  the 


74  THE  LAW  OF  THE  SEA 

shipper,  and  damage  results,  the  vessel  is  not  liable  for  damage  to 
cargo  so  stowed.  A  distinction  is  also  to  be  noted  between  under- 
deck  cargo  and  cargo  stowed  on  deck.  These  principles  are  illus- 
trated by  the  case  of  Lawrence  v.  Minturn,  17  How.  (U.  S.)  100. 
In  that  case  certain  boilers  and  chimneys  were  shipped  aboard  the 
Hornet  and  stowed  on  deck  with  the  consent  of  their  owner.  The 
vessel  encountered  bad  weather  and  began  to  roll  gunwale  deep, 
shipping  large  quantities  of  water,  opening  seams  and  endanger- 
ing the  safety  of  the  underdeck  cargo,  as  well  as  the  lives  of  those 
on  board.  After  consultation  with  his  officers  and  members  of 
the  crew  the  master  lightened  ship  by  throwing  overboard  the 
deck  cargo.  The  owner  of  the  boilers  and  chimneys  libeled  the 
ship.  In  directing  the  libel  to  be  dismissed  the  Supreme  Court 
said : 

It  was  strongly  urged  by  the  libellant's  counsel  that  the  shipper 
could  not  be  supposed  to  have,  and  should  not  suffer  for  not  possess- 
ing, a  knowledge  of  the  capacity  or  sufficiency  of  the  ship;  that  the 
carrier  was  bound  to  know  that  the  instrument,  by  which  he  agreed 
to  perform  a  particular  service,  was  sufficient  for  that  service ;  and 
that,  as  these  carriers  contracted  to  convey  this  deck-load  to  San 
Francisco,  they  were  obliged  to  ascertain  whether  placing  it  on  deck 
would  overload  their  vessel.  This  appears  to  have  been  the  ground 
on  which  the  court  below  rested  its  decree. 

This  reasoning  would  be  quite  unanswerable  if  applied  to  a  ship- 
ment of  cargo  under  deck,  or  to  its  being  laden  on  deck  without  the 
consent  of  the  merchant,  or  to  a  contract  in  which  perils  of  the  sea 
was  not  excepted.  But  the  maritime  codes  and  writers  have  recog- 
nized the  distinction  between  cargo  placed  on  deck,  with  the  consent 
of  the  shipper,  and  cargo  underdeck. 

There  is  not  one  of  them  which  gives  a  recourse  against  the  mas- 
ter, the  vessel,  or  the  owners,  if  the  property  lost  had  been  placed  on 
deck  with  the  consent  of  the  owner;  .  .  . 

The  carrier  does  not  contract  that  a  deck-load  shall  not  embarrass 
the  navigation  of  the  vessel  in  a  storm  or  that  it  shall  not  cause  her  so 
to  roll  and  labor  in  a  heavy  sea  as  to  strain  and  endanger  the  vessel. 
In  short,  he  does  not  warrant  the  sufficiency  of  his  vessel,  if  other- 
wise staunch  and  seaworthy  to  withstand  an  extraordinary  action  of 
the  sea  when  thus  laden.  If  the  vessel  is  in  itself  staunch  and  sea- 
worthy, and  her  inability  to  resist  a  storm  arises  solely  from  the 
position  of  a  part  of  the  cargo  on  her  deck,  the  owner  of  the  cargo  who 
has  consented  to  this  mode  of  shipment,  cannot  recover  from  the 
ship  or  its  owners,  on  the  ground  of  negligence  or  breach  of  an  im- 
plied contract  respecting  seaworthiness  .  .  . 

The  master  is  bound  to  use  due  diligence  and  skill  in  stowing  and 


CARRIAGE  BY  SEA  75 

staying  the  cargo;  but  there  is  no  absolute  warranty  that  what  is 
done  shall  prove  sufficient. 

In  this  connection,  however,  it  should  be  noted  that  the  forego- 
ing decision  has  not  been  interpreted  to  mean  that  where  a  ship- 
per assumes  the  risk  of  deck  cargo  he  thereby  bargains  away  his 
right  to  recover  for  loss  of  such  cargo  if  the  ship  were  inherently 
incapable  of  carrying  it.  Thus  the  court  in  the  Royal  Sceptre, 
187  Fed.  224,  where  the  shipper  himself  was  the  charterer  and 
loaded  the  cargo  on  deck,  said : 

Pressed  to  its  logical  limit,  the  untenable  nature  of  the  argument 
seems  very  plain ;  for  if  a  vessel  can  become  unseaworthy  by  piling 
up  deckload,  without  any  liability  to  the  owner  of  the  same,  she  may 
capsize  as  soon  as  her  fasts  are  thrown  off.  Deck  cargo  at  shipper's 
risk  does  not  mean  such  absolute  surrender  of  all  rights.  The  risk 
assumed  presupposes  proper  loading  for  deck  stowage  and  a  sea- 
worthy ship.  It  is  not  thought  that  Lawrence  v.  Mintuni  asserts 
any  doctrine  opposed  to  this.  It  speaks  only  of  a  jettison;  while,  if 
even  a  jettison  be  rendered  necessary  by  unseaworthiness  existing  at 
commencement  of  voyage,  the  ship  is  liable,  as  is  shown  by  the  sum- 
mary of  decisions  given  in  Compania  De  Navigacion  la  Flecha  v. 
Brauer,  168  U.  S.  120,  121. 

5.  Wreck  or  Stranding. —  Shipwreck  or  disaster  does  not  af- 
fect the  title  of  the  owners  of  the  cargo  but  the  goods  themselves 
may  become  subject  to  superior  liens  for  salvage  and  general  av- 
erage.^ If  the  voyage  is  broken  up  the  owner  may  take  his  prop- 
erty wherever  he  can  find  it,  subject  to  such  maritime  liens  as 
may  have  lawfully  accrued  and,  also,  in  some  cases,  to  a  claim  for 
freight  in  proportion  to  the  part  of  the  voyage  which  has  been 
performed.  In  the  absence  of  the  owners,  the  master  is  the  agent 
of  all  concerned  and  has  as  much  authority  as  the  necessities  of  the 
situation  require. 

In  practice  almost  all  matters  growing  out  of  a  disaster  are 
dealt  with  by  the  underwriters.  Cargoes  are  seldom  uninsured. 
The  owner  should  promptly  notify  his  insurers  or  brokers  and 
tender  an  abandonment  and  the  underwriters  will  attend  to  the 
situation  which  develops.  If  the  abandonment  be  accepted,  the 
shipper  receives  the  insured  value  of  his  goods  and  the  insurers 
stand  in  his  stead  as  owners.  The  policy  will  also  ordinarily  pro- 
tect against  the  loss  if  less  than  total  and  cover  all  charges  for 

1  See  p.  181. 


76  THE  LAW  OF  THE  SEA 

salvage,  general  average,  and  warehousing  to  which  the  property- 
may  be  subjected.  The  shipper  and  his  representatives  are  en- 
titled to  a  copy  of  the  master's  protest  and  all  other  information 
in  regard  to  the  disaster  and  also  to  be  consulted  in  regard  to 
operations  for  the  release  of  the  ship  and  cargo  if  they  so  desire. 

6.  Arrival  and  Discharge. —  It  is  the  duty  of  the  consignee  of 
the  cargo,  apart  from  local  custom  or  special  contract,  to  be  rea- 
sonably diligent  to  ascertain  when  the  ship  arrives  with  his  goods 
on  board  and  the  master  is  not  bound  to  seek  him  out  and  notify 
him.-  He  should,  however,  report  at  the  Custom  House  or  make 
such  other  public  notification  of  arrival  as  is  usual  in  the  port.  If 
the  consignee  does  not  appear  to  claim  and  receive  his  goods,  the 
master  may  land  and  warehouse  them  at  his  expense.  The  mas- 
ter is  bound  to  deliver  the  goods  to  the  right  person,  that  is,  the 
person  entitled  to  them  as  owner  or  as  holder  of  the  bill  of  lading 
and  all  outstanding  bills  of  lading  should  be  taken  up.  They  are 
quasi-negotiable,  and,  in  the  hands  of  third  parties,  may  become  the 
basis  of  a  claim  for  the  goods. 

The  consignee,  producing  a  proper  bill  of  lading,  is,  of  course, 
entitled  to  inspect  the  goods  before  accepting  them  and  the  ship 
must  afford  him  the  opportunity  even  if  the  instructions  be  not  to 
deliver  them  until  paid  for.  If  damaged,  he  may  decline  to  receive 
them,  but  if  he  accepts  he  should  closely  observe  the  provisions  of 
his  contract  in  regard  to  notice  and  claim  for  damages.  Most 
bills  of  lading  contain  provisions  limiting  the  time  within  which 
claims  may  be  made  and  these,  when  explicit,  are  enforced  by  the 
courts.  Failure  to  present  a  claim  in  accordance  with  such  stipu- 
lations will  usually  exonerate  the  carrier  even  if  the  damage  was 
occasioned  by  his  fault  or  negligence. 

This  subject  is  fully  discussed  by  the  Supreme  Court  in  the  case 
of  Constable  v.  National  Steamship  Co.,  154  U.  S.  51.  The  S.  S. 
Egypt  arrived  at  New  York  from  Liverpool  at  1.45  p.  m.  and 
there  being  no  room  for  her  at  her  owner's  pier,  was  taken  to  the 
pier  of  the  Inman  Company,  where  she  was  unladen,  pursuant  to 
a  permit  issued  by  the  Collector  of  Customs  whereby  the  cargo 
was  allowed  to  remain  on  the  wharf  for  forty-eight  hours  upon 
agreement  by  the  owners  of  the  ship  that  the  goods  should  be  at 

2  Prior  to  the  advent  of  steam  navigation  this  was  not  the  rule.  A  car- 
rier, in  order  to  discharge  his  liability,  was  obliged  to  deliver  the  cargo 
upon  the  usual  wharf  of  the  vessel,  and  give  actual  notice  to  the  consignee, 
if  he  were  known. 


CARRIAGE  BY  SEA  'j-j 

the  sole  risk  of  the  owners  of  the  ship  who  would  pay  the  con- 
signees the  value  of  such  cargo  as  might  be  stolen,  burned  or 
otherwise  lost.  Notice  of  the  time  and  place  of  discharge  was 
then  posted  upon  the  bulletin  board  of  the  Custom  House  in  ac- 
cordance with  the  usual  practice,  but  no  notice  was  sent  to  the 
consignee,  nor  did  he  have  actual  notice  or  knowledge  of  the 
arrival  and  unloading  of  the  vessel.  On  the  night  of  the  day  of 
the  arrival  the  goods  were  burned  on  the  pier  upon  which  they 
had  been  unladen  without  negligence  on  the  part  of  the  owners  of 
the  Egypt.     The  bill  of  lading  contained  this  provision: 

The  goods  to  be  taken  alongside  by  the  consignee  immediately  the 
vessel  is  ready  to  discharge,  or  otherwise  they  will  be  landed  by  the 
master  and  deposited  at  the  expense  of  the  consignee,  and  at  his  risk 
of  fire,  loss  or  injury  in  the  warehouse  provided  for  that  purpose  or 
in  a  public  store  as  the  Collector  of  the  Port  of  New  York  shall 
direct  .  .  .  The  United  States  Treasury  having  given  permission  for 
goods  to  remain  forty-eight  hours  on  wharf  at  New  York,  any  goods 
so  left  by  consignee  will  be  at  his  or  their  risk  of  fire,  loss  or  injury. 

The  Court  (Brown,  J.)  held: 

1.  That  the  stipulation  in  the  bill  of  lading  that  respondent  should 
not  be  liable  for  a  fire,  happening  after  unloading  cargo  was  reason- 
able and  valid. 

2.  That  the  discharge  of  the  cargo  at  the  Inman  pier,  was  not  in  the 
eye  of  the  law  a  deviation  such  as  to  render  the  carrier  and  insurer 
of  the  goods  so  unladen, 

3.  That  if  any  notice  of  such  unloading  was  required  at  all,  the  bul- 
letin posted  in  the  Custom  House  was  sufficient  under  the  practice 
and  usages  of  the  port  of  New  York. 

4.  That  libellants,  having  taken  no  steps  upon  the  faith  of  the  cargo 
being  unladen  at  respondent's  pier,  were  not  prejudiced  by  the  change. 

5.  That  the  agreement  of  the  respondent  with  the  Collector  of  Cus- 
toms to  pay  the  consignees  the  value  of  the  goods  was  not  one  of 
which  the  libellants  could  avail  themselves  as  adding  to  the  obliga- 
tions of  their  contracts  with  the  respondents. 

7.  Freight  and  Demurrage.—  Freight  is  the  price  of  transpor- 
tation by  sea  and  demurrage  has  been  called  a  kind  of  extended 
freight  but  is  more  generally  understood  as  the  price  of  delay  m 
loading  or  receiving  the  cargo  on  the  part  of  the  shipper  or  con- 
signee. Freight  must  be  earned  by  conveyance  and  delivery  of 
the  cargo  but  the  ship  is  entitled  to  hold  the  goods  until  payment 
is  made.  The  contract  of  affreightment  is  very  succinctly  de- 
scribed by  Lord  Ellenborough,  in  Hunter  v.  Prinsep,  10  East  378: 


78  THE  LAW  OF  THE  SEA 

The  shipowners  undertake  that  they  will  carry  the  goods  to  the 
place  of  destination,  unless  prevented  by  the  dangers  of  the  seas,  or 
other  unavoidable  casualties;  and  the  freighter  undertakes  that  if  the 
goods  be  delivered  at  the  place  of  their  destination  he  will  pay  the 
stipulated  freight;  but  it  was  only  in  that  event,  viz.,  of  their  deliv- 
ery at  the  place  of  destination,  that  he,  the  freighter,  engages  to  pay 
anything.  If  the  ship  be  disabled  from  completing  her  voyage,  the 
shipowner  may  still  entitle  himself  to  the  whole  freight,  by  forward- 
ing the  goods  by  some  other  means  to  the  place  of  destination;  but 
he  has  no  right  to  any  freight  if  they  be  not  so  forwarded;  unless 
the  forwarding  them  be  dispensed  with,  or  unless  there  be  some  new 
bargain  upon  this  subject.  If  the  shipowner  will  not  forward  them, 
the  freighter  is  entitled  to  them  without  paying  anything.  One 
party,  therefore,  if  he  forward  them,  or  be  prevented  or  discharged 
from  doing  so,  is  entitled  to  his  whole  freight;  and  the  other,  if 
there  be  a  refusal  to  forward  them,  is  entitled  to  have  them  without 
paying  any  freight  at  all.  The  general  property  in  the  goods  is  in 
the  freighter;  the  shipowner  has  no  right  to  withhold  the  possession 
from  him,  unless  he  has  either  earned  his  freight,  or  is  going  to  earn 
it.  If  no  freight  be  earned  and  he  decline  proceeding  to  earn  any, 
the  freighter  has  a  right  to  the  possession.  ^ 

Where  a  ship  does  not  "  break  ground,"  that  is  to  say,  does  not  ^ 
commence  her  voyage  at  all,  as  in  the  case  of  the  Tornado,  io8 
U,  S.  342,  in  which  it  appeared  that  the  vessel  was  destroyed  by 
fire  before  sailing,  the  contract  of  affreightment  is  dissolved,  or 
does  not  become  effective,  and  the  shipper  cannot  recover  freight 
which  she  did  not  even  begin  to  earn. 

The  lien  for  freight  is  a  qualified  one  and  will  be  lost  by  an 
unconditional  delivery.  The  same  is  true  of  demurrage  but  the 
personal  liability  of  the  shipper  or  consignee  will,  of  course,  re- 
main. The  amount  of  freight  is  usually  fixed  by  agreement  and 
specified  in  the  bill  of  lading. 

So,  also,  are  clauses  in  regard  to  demurrage.  Strictly  speak- 
ing, the  latter  can  only  be  recovered  where  it  is  expressly  reserved 
in  the  contract  of  carriage,  but,  where  such  stipulations  have  been 
omitted,  the  same  result  is  sometimes  obtained  by  an  action  for 
damages  in  the  nature  of  demurrage  on  account  of  wrongful  de- 
tention of  the  ship.  The  question  of  whether  the  ship  has  been 
unreasonably  delayed  or  wrongfully  detained  is  often  a  very  con- 
fused one  and  its  solution  depends  to  a  great  extent  on  the  sur- 
rounding circumstances.  When  emergency  demands  prevail  and 
ports  are  crowded,  the  ship  assumes  some  of  the  incidental  risks 
of  delay  in  obtaining  and  discharging  her  cargo,  and,  unless  the 


CARRIAGE  BY  SEA 


79 


contract  is  plain,  can  hardly  insist  upon  more  than  the  same  treat- 
ment as  others  in  similar  situations  are  obtaining.  When  disputes 
arise,  neither  party  should  press  his  position  to  the  extent  of  caus- 
ing further  delay,  as  by  withholding  or  refusing  the  goods.  Ad- 
miralty practice  abounds  in  opportunities  to  prevent  unnecessary 
delay  by  bonds  or  stipulations  and  the  parties  should  take  advan- 
tage of  these  or  risk  the  disfavor  of  the  court  in  which  their  liti- 
gation proceeds. 

8.  Unfair  Freight  Rates. —  The  Merchant  Marine  Act  of  June 
5,  1920  (see  Appendix),  forbids  and  makes  a  misdemeanor  the 
allowance  of  deferred  rebate  of  freight  to  any  shipper;  the  use 
of  fighting  ships,  i.  e.,  vessels  used  for  reducing  competition  by 
driving  any  carrier  out  of  the  trade;  retaliation  against  other 
shippers  by  refusal  .of  space  accommodations  when  the  same  are 
available,  and  the  making  of  any  unjustly  discriminatory  con- 
tract with  any  shipper  based  on  the  volume  of  goods  ofifered,  or 
the  making  of  any  unjustly  discriminatory  charge  against  any 
shipper  in  the  matter  of  accommodations,  loading  and  landing 
or  settlement  of  claims.  The  Shipping  Board  is  authorized  to  in- 
vestigate alleged  violations  of  these  provisions  and  the  Secretary 
of  Commerce  is  directed  to  refuse  the  right  of  entry  to  any  ship 
owned  or  operated  by  a  carrier  whom  the  Shipping  Board  has 
found  to  be  guilty  of  such  violations. 

9.  Passengers. —  The  carriage  of  passengers  by  water  is  regu- 
lated by  substantially  the  same  rules  in  regard  to  fares,  tickets, 
special  contracts  and  baggage  as  carriage  by  land. 

The  passenger  is  entitled  to  a  reasonable  amount  of  baggage 
having  regard  to  his  station  in  life  and  the  character  of  the  jour- 
ney. As  to  articles  which  he  retains  in  his  personal  custody  the 
carrier  is  not  an  insurer  but  is  liable  only  for  negligence;  the 
mere  fact  of  loss  creates  no  presumption  against  the  carrier 
(Clark  V.  Burns,  118  Mass.  275).  The  carrier  is  liable  for  arti- 
cles stolen  from  the  passenger  by  its  employees  (Minnetonka, 
146  Fed.  509)  and  the  conditions  and  limitations  as  to  value  of 
baggage  usually  printed  on  the  tickets  are  of  slight  value  in  the 
courts  (Majestic,  166  U.  S.  375). 

10.  Reciprocal  Duties. —  The  real  differences  between  rules  of 
law  applicable  to  land  and  sea  travel  result  from  their  own  pe- 
culiar circumstances.  Thus,  the  relation  of  passenger  and  ship 
necessarily  implies  something  more  than  mere  ship  room  and  per- 


8o  THE  LAW  OF  THE  SEA 

sonal  existence  on  board.  For  the  time  being  the  ship's  company 
and  the  passengers  constitute  a  community  by  themselves  and  ^ 
remote  from  the  rest  of  the  world.  There  must  be  a  certain 
amount  of  mutual  toleration  and  concession.  The  situation  re- 
quires, indeed,  not  mere  toleration  but  respectful  treatment, — 
"  That  decency  in  demeanor  which  constitutes  the  charm  of  social 
life,  that  attention  which  mitigates  evils  without  reluctance,  and 
that  promptitude  which  administers  aid  to  distress."  (Chamber- 
lain V.  Chandler,  3  Mason  242;  Western  States,  151  Fed.  929.) 
The  passengers  must  be  prepared  to  submit  on  proper  occasions 
to  the  authority  of  the  master,  which  may,  indeed,  occasionally 
become  despotic  where  the  safety  of  the  ship  is  involved.  He 
may  compel  passengers  to  work  at  the  pumps,  for  example,  in  the 
face  of  actual  danger  (i  Parsons'  Shipping  and  Admiralty,  637) 
or  even  to  risk  their  lives  if  the  common  safety  requires  it 
(Boyce  v.  Bayliffe,  i  Campbell,  58).  Of  course  this  power  must 
be  judiciously  exercised  and  if  it  is  overstepped  the  law  will 
afford  redress.  The  old  case  of  Prendergast  v.  Compton,  8 
C.  &  P.  454,  is  illustrative;  the  defendant  was  master  of  a  ship 
from  Madras  for  London,  in  the  days  when  long  voyages  around 
the  Cape  were  common.  The  plaintiff  was  a  passenger  whose 
table  manners  were  distasteful  to  the  other  members  of  the  mas- 
ter's table ;  he  first  attempted  to  correct  them  by  mild  suggestions 
and  remonstrances,  but  the  plaintiff  responded  by  threatening  to 
cane  the  master,  who  thereupon  excluded  him  from  the  cabin  and 
otherwise  subjected  him  to  discipline  during  the  voyage.  On  ar- 
rival in  port  the  plaintiff  brought  this  action  and  the  case  affords 
an  interesting  discussion  of  the  subject;  the  question  was  finally 
left  to  a  jury  who  concluded  that  the  master  had  exceeded  his 
authority  and  allowed  the  plaintiff  twenty-five  pounds  as  dam- 
ages. 

The  maritime  law  required  a  high  degree  of  care  for  the  pro- 
tection of  the  passenger  from  personal  injury.  A  ship  must  an- 
swer for  such  damages  as  might  have  been  avoided  by  the  exercise 
of  unusual  diligence  and  extraordinary  skill.  Although  not  tech- 
nically an  insurer,  a  presumption  against  a  ship  will  be  heavy  m 
such  cases,  and  ordinarily  damages  will  follow  unless  it  can  be 
shown  that  the  injury  was  entirely  due  to  the  passenger's  own 
fault.^ 

3  See  §  2,  this  chapter,  j'n/ra. 


CARRIAGE  BY  SEA  8i 

11.  Baggage. —  Passengers'  baggage  or  luggage  is  in,  substan- 
tially, the  same  class  as  cargo  as  far  as  the  liability  of  the  ship  is 
concerned.  Some  cases  have  held  that  there  was  an  exception  of 
property  which  the  passenger  retained  in  his  own  custody  but  the 
general  rule  is  that  this  only  relieves  the  carrier  where  the  pas- 
senger's own  negligence  occasioned  the  loss ;  in  such  cases  the 
passenger  must  show  that  the  shipowner  failed  to  exercise  rea- 
sonable and  proper  care.  The  matter  is  frequently  covered  by 
express  stipulations  in  the  ticket  or  contract  of  carriage  but  these 
will  not  usually  be  enforced  in  the  American  courts  unless  reason- 
able and  plainly  agreed  to  by  the  passenger.  Thus  arbitrary  limi- 
tations of  the  value  of  the  baggage  of  a  steamship  passenger  are 
void.  Passengers'  baggage  is  not  limited  to  wearing  apparel  and 
similar  articles,  although  the  general  rule  is  that  it  must  be  con- 
fined to  such  articles  as  are  reasonably  required  for  the  purposes 
of  the  journey,  having  in  mind  its  general  scope  and  the  station 
and  circumstances  of  the  passenger.  It  is  not  permitted  to  impose 
extraordinary  liabilities  upon  the  ship  by  carrying  as  baggage  ^ 
goods  of  great  value  which  should  be  otherwise  shipped.  In  a 
recent  case  recovery  was  allowed  for  the  loss  of  a  manuscript  of 

a  manual  on  Greek  grammar  contained  in  the  passenger's  trunk ; 
he  valued  it  at  $5,ocx);  the  Court,  however,  allowed  only  $500,  on 
the  theory  that  it  was  an  imposition  on  the  carrier  to  place  so 
valuable  an  original  in  his  baggage  when  he  might  have  carried  an 
equally  serviceable  copy. 

12.  Personal  Injuries. —  Passenger  carriers  by  water  are  sub- 
ject to  the  same  general  liabilities  of  carriers  by  land.  The  high- 
est degree  of  care  for  the  safety  of  the  passenger  is  required  of 
the  ship  and  negligence  is  presumed  where  an  injury  is  sustained 
on  board.  It  is  the  duty  of  the  vessel  to  protect  its  passengers 
from  harm  by  reason  of  defects  irr  construction  or  acts  of  the  A 
ship's  company  or  other  passengers.     Actions  for  damages  may 

be  brought  against  the  ship  or  the  owner.  An  injured  passenger 
is  entitled  to  at  least  the  same  degree  of  care  and  attention  that  a 
member  of  the  crew  is  and  may  have  an  additional  claim  if  this  is 
neglected.  The  cases  exhibit  a  wide  range  of  injuries  on  ship- 
board for  which  recoveries  have  been  allowed;  thus,  where  a 
sailor  carelessly  fell  from  the  foretopmast  upon  a  passenger,  a 
libel  was  sustained;  so  where  a  passenger  was  thrown  from  his 
berth  by  the  pitching  of  the  ship  in  a  storm,  through  absence  of  a 


82  THE  LAW  OF  THE  SEA 

protecting  board ;  so  for  failure  to  accord  to  a  passenger  respectful 
treatment  by  the  officers  and  crew ;  for  failure  properly  to  protect 
exposed  parts  of  machinery  and  openings  in  the  deck;  failure  to 
provide  a  sufficient  supply  of  wholesome  food ;  furnishing  unsani- 
tary drinking  water ;  and,  indeed,  for  the  negligence  of  those  con- 
veying passengers  to  and  from  the  ship  or  on  excursion  trips  on 
shore  when  advertised  as  a  part  of  the  voyage  in  question.  The 
ship  is  required  to  have  a  doctor  on  board  for  the  care  of  passen- 
gers but,  when  due  care  has  been  exercised  in  his  selection,  there 
is  no  liability  for  his  mistakes  or  negligence  in  his  professional 
work. 

Cases  abound  illustrative  of  these  principles.  For  example  the 
old  cases  of  Behrens  v.  Furnessia,  35  Fed.  798,  and  the  City  of 
Panama,  loi  U.  S.  453,  in  both  of  which  passengers  were  injured 
by  falling  down  open  hatchways,  which  were  customarily  kept 
closed,  and  the  more  modern  case  of  Dempster  Shipping  Co.  v. 
Pouppirt,  125  Fed.  yT^2,  where  the  plaintiff  while  on  deck  was 
struck  by  a  beam  which  was  being  thrown  overboard.  In  the  two 
cases  first  mentioned  plaintiffs  recovered  damages,  it  being  con- 
sidered that  under  the  circumstances  the  ship  was  negligent  in 
leaving  open  and  unguarded  hatchways  which  were  customarily 
kept  closed  and  over  which  passengers  were  accustomed  to  pass. 
In  the  case  last  cited  plaintiff  failed  to  recover  because  it  appeared 
that  he  had  voluntarily  placed  himself  in  dangerous  proximity  to 
boards  that  were  being  swung  over  the  side.  The  law  is  quite 
fully  reviewed  in  these  cases.     In  the  City  of  Panama,  it  was  said : 

Owners  of  vessels,  engaged  in  carrying  passengers,  assume  obliga- 
tions somewhat  different  from  those  whose  vessels  are  employed  as 
common  carriers  of  merchandise.  Obligations  of  the  kind  in  the 
former  case  are,  in  some  few  respects,  less  extensive  and  more  qual- 
ified than  in  the  latter,  as  the  owners  of  the  vessel  carrying  passen- 
gers are  not  insurers  of  the  lives  of  their  passengers,  nor  even  of 
their  safety;  but  in  most  other  respects  the  obligations  assumed  are 
equally  comprehensive  and  even  more  stringent  .  .  . 

Passengers  must  take  the  risk  incident  to  the  mode  of  travel  which 
they  select,  but  those  risks  in  the  legal  sense  are  only  such  as  the 
utmost  care,  skill  and  caution  of  the  carrier,  in  the  preparation  and 
management  of  the  means  of  conveyance  are  unable  to  avert. 

In  the  case  of  Shipping  Co.  v.  Pouppirt,  the  court  quoted  with 
approval  the  following  language  from  Railway  Co.  v.  Myers,  80 
Fed.  361 : 


CARRIAGE  BY  SEA 


83 


If  a  passenger  of  mature  age  leaves  the  place  which  he  knows  has 
been  provided  for  him,  and,  without  any  occasion  for  so  doing,  or 
to  gratify  his  curiosity,  goes  to  another,  where  the  dangers  are 
greater,  or  places  himself  in  a  dangerous  attitude,  which  he  was  not 
intended  to  assume,  or  if  he  disobeys  any  reasonable  regula^on  of 
the  carrier,  it  should  be  held  that  he  assumes  whatever  increased  risk 
of  injury  is  incurred  in  so  doing. 

13.  Loss  of  Life. —  Until  March  30,  1920,  the  general  maritime 
law  did  not  give  any  right  to  recover  for  loss  of  life.  On  that 
date  an  act  of  Congress  was  approved,  the  text  of  which  follows : 

That  whenever  the  death  of  a  person  shall  be  caused  by  wrongful 
act,  neglect  or  default  occurring  on  the  high  seas  beyond  a  marine 
league  from  the  shores  of  any  State,  or  the  District  of  Columbia,  or 
the  Territories  or  dependencies  of  the  United  States,  the  personal 
representatives  of  the  decedent  may  maintain  a  suit  for  damages  in 
the  district  courts  of  the  United  States,  in  admiralty,  for  the  exclusive 
benefit  of  the  decedent's  wife,  husband,  parent,  child,  or  dependent 
relative  against  the  vessel,  person,  or  corporation  which  would  have 
been  liable  if  death  had  not  ensued. 

Sec.  2.  That  the  recovery  in  such  suit  shall  be  a  fair  and  just  com- 
pensation for  the  pecuniary  loss  sustained  by  the  persons  for  whose 
benefit  the  suit  is  brought  and  shall  be  apportioned  among  them  by  the 
court  in  proportion  to  the  loss  they  may  severally  have  suffered  by 
reason  of  the  death  of  the  person  by  whose  representative  the  suit 
is  brought. 

Sec.  3.  That  such  suit  shall  be  begun  within  two  years  from  the 
date  of  such  wrongful  act,  neglect,  or  default,  unless  during  that 
period  there  has  not  been  reasonable  opportunity  for  securing  juris- 
diction of  the  vessel,  person  or  corporation  sought  to  be  charged;  but 
after  the  expiration  of  such  period  of  two  years  the  right  of  action 
hereby  given  shall  not  be  deemed  to  have  lapsed  until  ninety  days 
after  a  reasonable  opportunity  to  secure  jurisdiction  has  offered. 

Sec.  4.  That  whenever  a  right  of  action  is  granted  by  the  law  of 
any  foreign  State  on  account  of  death  by  wrongful  act,  neglect,  or 
default,  occurring  upon  the  high  seas,  such  right  may  be  maintained 
in  an  appropriate  action  in  admiralty  in  the  courts  of  the  United 
States  without  abatement  in  respect  to  the  amount  for  which  recovery 
is  authorized,  any  statute  of  the  United  States  to  the  contrary  not- 
withstanding. 

Sec.  5.  That,  if  a  person  die  as  the  result  of  such  wrongful  act, 
neglect,  or  default  as  is  mentioned  in  section  i  during  the  pendency 
in  a  court  of  admiralty  of  the  United  States  of  a  suit  to  recover 
damages  for  personal  injuries  in  respect  of  such  act,  neglect,  or  de- 
fault, the  personal  representative  of  the  decedent  may  be  substituted 
as  a  party  and  the  suit  may  proceed  as  a  suit  under  this  Act  for  the 
recovery  of  the  compensation  provided  in  section  2. 


84  THE  LAW  OF  THE  SEA 

Sec.  6.  That  in  suits  under  this  Act  the  fact  that  the  decedent  has 
been  guilty  of  contributory  negligence  shall  not  bar  recovery,  but  the 
court  shall  take  into  consideration  the  degree  of  negligence  attri- 
butable to  the  decedent  and  reduce  the  recovery  accordingly. 

Sec.  7.  That  the  provisions  of  any  State  statute  giving  or  regulat- 
ing rights  of  action  or  remedies  for  death  shall  not  be  affected  by 
this  Act.  Nor  shall  this  Act  apply  to  the  Great  Lakes  or  to  any 
waters  within  the  territorial  limits  of  any  State,  or  to  any  navigable 
waters  in  the  Panama  Canal  Zone. 

Sec.  8.  That  this  Act  shall  not  affect  any  pending  suit,  action,  or 
proceeding. 

It  will  be  observed  that  this  act  places  loss  of  life  on  the  high 
seas  in  the  same  category  as  personal  injuries.  The  suit  is  to  be 
brought  by  the  personal  representative  of  the  decedent  for  the 
benefit  of  the  decedent's  wife,  husband,  parent,  child  or  de- 
pendent relative.  It  would  appear  that  if  there  are  no  such  per- 
sons an  action  could  not  be  maintained.  This  would  seem  to  ex- 
clude a  right  of  action  where  the  decedent  leaves  only  creditors 
or  heirs  of  more  remote  degree  than  those  enumerated.  Nearly 
all  the  states  have  statutes  providing  for  recovery  on  account  of 
loss  of  life  at  sea  and  these  statutes  have  hitherto  been  enforced 
in  the  admiralty  courts.  Section  7  provides  that  the  federal  act 
shall  not  affect  rights  of  action  or  remedies  for  death  provided 
by  state  lav^^s.  The  act  is  broad  enough  in  terms  to  include  a 
right  of  action  for  the  death  of  seamen,  but  there  is  another 
statute  covering  such  cases  (see  Chapter  V,  §  6,  supra). 

The  act  does  not  aiTect  the  right  of  the  owners  of  a  ship  to  limit 
their  hability.  Claims  for  loss  of  life  when  properly  payable 
under  the  act  would  apparently  be  included  among  claims  to  be 
paid  out  of  the  limited  liability. 

The  act  does  not  enlarge  the  responsibility  of  the  owners. 
Whether  they  are  responsible  in  personam,  or  whether  the  vessel 
is  solely  responsible  in  rem  depends  on  the  privity  or  knowledge 
of  the  owner,  as  discussed  in  Chapter  VIII,  §  9  infra. 

REFERENCES  FOR  GENERAL  READING 

Carriage  of  Goods  by  Sea,  T.  G.  Carver.     London,  1909;  Stevens  and 

Sons,  Ltd. 
Law  of  Carriers,  E.  P.  Wheeler.     New  York,  1890;  Baker,  Voorhis 

&  Co. 
Maritime  Law,  Albert  Saunders.     London,  1901 ;  Sweet  &  Maxwell, 

Ltd. 


CARRIAGE  BY  SEA  85 


Fitzgerald,  212  Fed.  678. 
Wildcroft,  201,  U.  S.,  378. 
Sumner  v.  Caswell,  20  Fed.  249. 
Dan,  40  Fed.  691. 
Harlem,  27  Fed.  236. 
Hattie  P.,  63  Fed.  1015. 
Manitoba,  104  Fed.  145. 
Majestic,  56  Fed.  244. 
Normania,  62  Fed.  469. 
Kensington,  183  U.  S.  263. 


CHAPTER  VII 

CONTRACTS  OF  AFFREIGHTMENT,  BILLS  OF  LADING  AND 

CHARTER  PARTIES 

I.  Definitions. —  Contracts  of  affreightment  are  for  the  carriage 
of  goods  in  vessels.  This  definition  is  sufficiently  comprehensive 
to  include  contracts  evidenced  by  bills  of  lading  and  charter  par- 
ties. In  practice  the  expression,  "  contracts  of  affreightment,"  is 
commonly  used  in  a  somewhat  narrower  sense  to  indicate  those 
cases  in  which  a  vessel  is  operated  by  her  owners  on  their  own  ac- 
count, contracting  directly  with  the  shippers. 

A  bill  of  lading  is  the  document  issued  for  carriage  of  goods 
which  form  only  a  part  of  the  cargo ;  it  is  both  a  receipt  and  a 
contract  of  carriage. 

A  charter  party  is  a  contract  in  writing  by  which  the  shipowner 
lets  the  ship  in  whole  or  in  part.  It  corresponds  to  a  lease  of 
lands  or  buildings.  The  name  comes  from  the  fact  that  it  was 
formerly  prepared  on  a  card  which  was  then  cut  into  two  parts 
from  top  to  bottom  (carta  partita)  and  each  of  the  parties  re- 
tained one  for  production  when  required  and  thus  prevented  coun- 
terfeiting. 

By  an  order  dated  October  i,  1920,  made  pursuant  to  the  pro- 
visions of  the  Merchant  Marine  Act  (see  Appendix),  the  Ship- 
ping Board  requires  two  certified  copies  of  every  charter  or  con- 
tract of  affreightment  made  on  American  or  foreign  steam  or  sail- 
ing vessels  leaving  continental  United  States  to  be  filed  with  the 
Chartering  Executive  Committee,  45  Broadway,  New  York,  which 
will  then  issue  a  certificate  of  filing.  Unless  this  is  done,  clearance 
will  be  refused  the  vessel;  but  where  there  is  not  time  to  file  cer- 
tified copies  before  sailing,  a  letter  or  telegram  to  the  Committee, 
giving  all  details  of  the  contract,  will  answer  the  purpose.  Gen- 
eral cargo  and  passenger  vessels,  those  in  ballast  and  those  carry- 
ing cargo  for  owners  are  not  subject  to  this  regulation. 

Freight  is  the  price  of  the  carriage  of  goods  by  sea  under  a  bill 
of  lading,  and  also  the  sum  agreed  on  for  the  hire  of  the  ship 
under  a  charter  party. 

86 


CONTRACTS  87 

Before  discussing  the  particular  features  of  these  contracts  it 
will  be  well  to  observe  certain  elements  which  enter  into  substan- 
tially all  contracts  for  the  carriage  of  goods  for  hire.  These  are 
the  warranty  of  seaworthiness,  the  obligation  against  deviation 
and  the  exemption  of  the  carrier  from  liability  on  account  of  the 
perils  of  the  sea. 

In  the  Chapter,  "  Liabilities  and  Limitations,"  §10,  will  be  found 
a  discussion  of  the  Harter  Act.  This  must  be  taken  into  consid- 
eration in  connection  with  these  subjects. 

2.  Seaworthiness. —  The  warranty  of  seaworthiness  underlies 
all  contracts  between  the  vessel  and  the  shipper.  It  is  -an  implied 
warranty  on  the  part  of  the  owner  that  the  vessel  is  seaworthy, 
and  sufficient  for  the  use  to  which  she  is  to  be  devoted.  This  war- 
ranty may  be  modified  between  the  parties  as  they  see  fit  by  ex- 
press agreement  or  necessary  implication ;  a  man  may  hire  an 
unseaworthy  boat  and  agree  to  put  her  in  good  condition ;  a  char- 
terer who  examines  and  accepts  a  ship  whose  condition  is  defective 
cannot  complain  of  an  injury  to  the  cargo  caused  by  such  defects. 
Otherwise  the  warranty  subsists  and  the  charterer  cannot  be  held 
liable  to  the  owner  for  depreciation  in  the  ship  resulting  from  un- 
seaworthiness and  has  also  the  right  to  cancel  the  charter  on  the 
same  ground.  He  may  also  hold  the  owner  for  such  damages  as 
he  is  obliged  to  pay  third  parties  on  account  of  unseaworthiness. 
This  warranty,  unless  restricted  by  agreement,  extends  to  latent 
or  hidden  defects,  since  it  requires  that  the  ship  be  seaworthy  at 
the  commencement  of  the  voyage  and  is  not  satisfied  by  the  fact 
that  the  shipowner  does  not  know  her  to  be  unseaworthy  or  has 
used  his  best  efforts  to  make  her  seaworthy.  It  runs  up  to  the 
time  she  breaks  ground  for  the  voyage,  but  is  modified  by  the  re- 
sults of  subsequent  excepted  perils  until  it  is  reasonably  prac- 
ticable to  repair  them. 

In  Bowring  v.  Thebaud,  56  Fed.  520,  it  was  held : 

The  shipowner  in  every  contract  of  affreightment  impliedly  en- 
gages with  the  shipper  of  the  goods  that  his  ship  on  the  commence- 
ment of  her  voyage  is  seaworthy  for  that  voyage  and  supplied  with 
a  competent  crew. 

And  the  following  statement  of  the  law,  from  Carver  on  Carriage 
by  Sea,  was  approved : 

The  warranty  of  seaworthiness  for  a  voyage  must  be  satisfied  at 


88  THE  LAW  OF  THE  SEA 

the  time  of  sailing  with  the  cargo.  It  is  not  suflficient  that  the  shiji 
was  fit  for  the  voyage  while  the  cargo  was  being  taken  on,  if  she 
became  unfit  before  she  started.  The  warranty  in  truth  appears  to 
be  a  double  one,  viz.,  that  the  ship  shall  be  fit  to  receive  the  cargo 
when  receiving  it  and  shall  be  fit  to  sail  at  the  time  of  sailing. 

The  Court  proceeded : 

The  warranty  that  the  vessel  is  tight  and  fit  for  the  employment 
for  which  she  is  offered, —  that  is,  for  the  contemplated  voyage  on 
which  she  is  to  carry  cargo, —  is  the  very  foundation  and  substratum 
of  the  contract  of  charter.  The  exception  in  a  charter  party  as  to 
dangers  of  the  seas  and  navigation  is  not  applicable  to  the  perils  and 
dangers  which  arise  from  the  breach  of  the  owner's  obligation. 
Consequently  it  does  not  apply  to  the  warranty  of  seaworthiness. 
Undoubtedly  in  cases  where,  under  the  language  of  the  charter  party, 
the  warranty  is  satisfied  if  the  vessel  is  seaworthy  at  the  commence- 
ment of  a  voyage  preliminary  to  her  being  laden,  the  shipowner  is 
relieved  by  the  exception  from  liability  for  any  peril  of  the  seas  or 
navigation  which  are  subsequently  encountered  without  fault  or  neg- 
ligence on  his  part  ...  In  all  of  these  adjudications,  the  question 
was  as  to  the  meaning  of  the  contract  of  the  parties.  This  must  be 
decided  in  each  case  by  applying  the  rules  of  interpretation  to  the 
contract  on  hand. 

3.  Deviation. —  The  ship  must  cover  the  proposed  voyage  with-  A 
out  deviation.  Deviation  is  defined  to  be  "  a  voluntary  departure 
without  necessity  or  reasonable  cause,  from  the  regular  and  usual 
course  of  a  voyage"  (Hostetter  v.  Park,  137  U.  S.  30).  Devi- 
ation makes  the  carrier  liable  for  losses  occasioned  thereby  as  an 
insurer  notwithstanding  any  limitation  of  liability  in  the  contract 
of  carriage.  It  may  be  excused  for  the  purpose  of  saving  Ufe  or 
avoiding  perils  if  the  master  acts  in  accordance  with  sound  judg- 
ment, and  it  is  excused  if  it  be  the  custom  of  the  trade  to  put  in  at 
a  particular  port  on  similar  voyages.  The  consignee,  if  he  in- 
tends to  insist  upon  the  deviation  as  a  defense  to  his  liability  for 
freight,  should  refuse  to  receive  the  cargo. 

An  instructive  discussion  of  the  rule  with  regard  to  deviation 
is  found  in  the  case  of  the  Indrapura,  171  Fed.  929,  where  a  vessel 
bound  from  Hong  Kong  to  Portland,  Oregon,  was  placed  on  a 
drydock  at  Hong  Kong  without  maritime  necessity  and  there 
caught  fire,  whereby  the  cargo  was  injured.  The  owners  of  the 
cargo  libeled  the  ship  for  their  damages,  alleging  that  the  un- 
necessary docking  of  the  ship  was  a  deviation.     The  Court  said : 

The  term  "  deviation  "  in  the  law  of  shipping  has  at  the  present  day 


CONTRACTS  89 

a  varied  meaning  and  wide  significance.  It  was  originally  employed 
no  doubt,  for  the  purpose  its  lexicographical  definition  implies, 
namely,  to  express  the  wandering  or  straying  of  a  vessel  from  the 
customary  course  of  voyage;  but  it  seems  now  to  comprehend  in 
general  every  conduct  of  a  ship  or  other  vehicle  used  in  commerce 
tending  to  vary  or  increase  the  risk  incident  to  a  shipment.  Thus 
delay  in  starting  a  shipment  when  unreasonable  or  unexcused  came  to 
be  regarded  as  a  deviation,  not  because  the  vehicle  employed  departed 
from  the  usual  route  of  travel,  but  because  the  risk  of  shipment  was 
changed  or  increased,  and  became,  in  effect,  not  the  same  as  the  one 
with  reference  to  which  the  parties  contracted. 

And  in  Bulkley  v.  Insurance  Co.,  Fed.  Cas.  No.  2,118,  it  was  said: 

The  shortness  of  time  or  distance  of  deviation  is  immaterial  if 
voluntary  and  without  necessity,  and  not  justified  by  usage. 

The  contract  of  carriage  frequently  purports  to  give  the  ship 
liberty  to  make  deviation.  This  is  construed  strictly  against  the 
owner  of  the  vessel.  She  may  make  only  "  reasonable  deviation." 
She  may  call  at  a  port  lying  directly  on  the  route  of  her  voyage, 
but  may  not  go  out  of  her  way  to  any  considerable  degree,  and  if 
she  does  so  and  the  shipper  is  damaged  the  exemption  will  not 
avail  to  protect  her  owner. 

4.  Perils  of  the  Sea. —  Almost  every  contract  in  respect  of  em- 
ployment of  the  ship  contains  an  express  or  implied  exception  of  "^ 
perils  of  the  seas.  This  provides  an  exemption  of  liability  on  ac- 
count of  losses  caused  by  these  perils.  These  casualties  cannot  be 
accurately  defined.  The  expression  denotes  accidents  peculiarly 
incident  to  navigation,  whether  on  lake,  river,  or  the  deep  sea,  not 
attributable  to  any  human  agency  or  intervention.  It  is  rather 
more  comprehensive  than  the  '*  acts  of  God,"  but  by  no  means 
includes  all  the  dangers  which  may  occur  while  journeying  on  the 
sea.  Collision  is  a  peril  of  the  sea  if  it  occurs  without  fault  of 
either  ship  but  not  if  by  reason  of  the  negligence  of  the  carrying 
ship.  Tempests,  rocks,  shoals,  icebergs  and  other  obstacles  are 
within  the  expression;  so  are  incursions  of  sea  water,  which  dam- 
age the  goods,  as  well  as  such  bad  weather  as  prevents  ordinary 
ventilation  and  causes  the  cargo  to  heat  and  sweat.  Where  the 
peril  is  the  proximate  cause  of  the  loss,  the  shipowner  is  excused. 

5.  Fire.—  Sec.  4282,  U.  S.  Rev.  St.,  is  as  follows : 

No  owner  of  any  vessel  shall  be  liable  to  answer  for  or  make  good 
to  any  person  any  loss  or  damage  which  may  happen  to  any  mer- 
chandise whatsoever,  which  shall  be  shipped,  taken  in.  or  put  on  board  "' 
any  such  vessel,  by  reason  or  by  means  of  any  fire  happening  to  or  on 


90  THE  LAW  OF  THE  SEA 

board  the  vessel,  unless  such  fire  is  caused  by  the  design  or  neglect  of 
such  owner. 

It  will  be  noticed  that  while  this  statute  provides  complete  pro- 
tection against  fire  on  shipboard  it  does  not  protect  against  lia- 
bility for  damage  by  fire  occurring  on  shore.  To  cover  this  it  is 
common  to  insert  in  the  contract  of  carriage  an  exemption  from 
loss  "  before  loading  in  the  ship  or  after  unloading."  Such  an 
exception  is  upheld  by  the  courts  where  fire  is  not  attributable  to 
the  neglect  of  the  owner  of  the  ship.  Such  a  case  was  that  of 
Constable  v.  National  Steamship  Co.,  154  U.  S.  51,  where  goods 
were  delivered  on  the  pier  of  the  Steamship  Company  and  injured 
by  fire  before  they  were  laden.  The  Court  held  that  the  clause 
in  the  bill  of  lading,  excepting  loss  by  fire  "  before  loading  in  the 
ship  or  after  unloading,"  was  a  valid  defense. 

6.  Restraint  of  Princes. —  The  contract  usually  contains  a  pro- 
vision exempting  the  shipowner  from  liability  for  damage  due  to 
"  restraint  of  princes."  This  quaint  phrase  means  any  kind  of 
governmental  action  which  interrupts  the  voyage,  or  otherwise 
prevents  the  performance  of  the  contract.  These  restraints  occur 
most  often  during  war,  although  they  may  happen  in  time  of 
peace,  as  in  the  case  of  detention  in  quarantine.  If  the  restraint 
results  from  some  action  taken  by  the  shipowner,  such  as  the 
taking  on  of  contraband  goods,  the  clause  will  not  relieve  him 
from  liability. 

A  simple  illustration  of  the  restraint  of  princes  clause  appears 
in  Allanwilde  Transport  Corp.  v.  Vacuum  Co.,  248  U.  S.  377, 
where  a  sailing  vessel,  the  Allanwilde,  was  chartered  to  the  libel- 
lants  for  the  transportation  of  a  cargo  of  oil  and  nails  to  Roche- 
fort,  France.  The  freight  was  prepaid.  She  started  on  the  voy- 
age and  while  she  was  at  sea  the  government  prohibited  sailing 
vessels  departing  from  the  United  States  on  voyages  which  would 
carry  them  through  the  war  zone.  The  vessel  ran  into  bad 
weather  and  was  obliged  to  put  back  to  the  United  States  for  re- 
pairs. By  reason  of  the  governmental  order  she  did  not  resume 
her  voyage.  The  owners  of  the  cargo  libeled  the  vessel  to  recover 
the  prepaid  freight.  They  also  presented  a  claim  for  damages. 
The  Court  held  that  the  restraint  of  princes  clause  of  the  charter 
party  was  a  valid  defense  to  the  suit.  Thus  the  vessel  retained 
the  freight  which  had  been  prepaid,  although  the  voyage  did  not 
take  place,  and  the  cargo-owners  did  not  recover  their  damages. 


CONTRACTS  91 

7.  Freight. —  (a)  Dead  Freight. —  In  case  the  charter  party, 
provides  for  the  shipment  of  a  full  cargo  by  the  charterer  and 
compensation  to  the  owner  of  the  ship  is  payable  per  unit  of 
cargo,  the  shipowner  will  be  entitled  to  recover  from  the  charterer 
the  amount  of  freight  which  would  have  been  payable  by  so  much 
cargo  as  could  have  occupied  the  space  left  vacant.  This  is  called 
dead  freight. 

On  the  other  hand  cases  arise  in  which  the  owner  has  to  pay 
dead  freight  to  the  charterers.  This  occurs  where  the  compensa- 
tion for  the  ship  is  a  lump  sum  and  the  owner  fails  to  load  a  full 
cargo. 

(b)  When  Freight)  is  Earned. —  Freight  is  earned  when  the 
goods  have  been  carried  to  their  destination  and  not  until  then. 
If  it  be  paid  in  advance  and  the  goods  do  not  arrive  at  destination 
it  must  be  refunded.  Of  course,  the  parties  may  by  their  express^ 
stipulations  in  charter  parties,  bills  of  lading  and  other  forms  of 
agreement  change  these  rules,  and  frequently  do  so.  For  exam- 
ple it  is  sometimes  provided  that  prepaid  freight  shall  be  con- 
sidered earned  on  the  shipment  of  the  goods,  or  if  the  ship  be  lost 
the  freight  shall  not  be  refunded.  Such  bargains  are,  of  course, 
entirely  legal  and  will  be  enforced  by  the  courts  according  to  their 
tenor. 

Charters  sometimes  provide  for  the  carrying  of  cargo  out  and 
back.  Here  the  terms  of  the  contract  with  reference  to  the  out- 
bound and  homeward-bound  voyage  are  inseparable.  No  freight 
is  earned  until  the  ship  returns  with  the  homeward-bound  cargo. 
But  if  the  contract  can  be  construed  so  as  to  regard  each  voyage 
separately,  the  freight  for  the  outbound  voyage  will  be  earned  at 
destination  whether  the  ship  returns  with  cargo  or  not. 

8.  Contracts  of  Affreightment. —  Where  the  contract  is  not 
plainly  a  demise  of  the  ship,  i.e.,  a  conveyance  which  turns  over 
her  full  operation  and  control,  it  will  not  be  so  interpreted,  and  the 
owner  will  be  in  a  position  of  a  carrier  of  goods  or  as  himself  con- 
tracting for  such  other  service  by  the  ship  as  the  charter  requires, 
that  is  to  say,  the  contract  is  one  of  affreightment. 

Thus  in  Hagar  v.  Clark,  78  N.  Y.  45,  it  was  held : 

If  it  remains  doubtful  whether  the  charterers  were  to  have  sole 
possession  and  control  of  the  vessel  during  the  voyage  or  were  to 
be  constituted  owners  pro  hac  vice,  then  the  general  owners  must 
be  deemed  such  for  their  rights  and  authority  continue  until  displaced 


92  THE  LAW  OF  THE  SEA 

by  some  clear  and  definite  transfer  of  them.  The  legal  presumption 
is  in  favor  of  continuance  of  ownership  and  against  any  transfer 
of  the  ship  to  the  charterer  for  the  voyage,  and  is  said  to  be  so 
strong  that,  if  the  end  sought  to  be  effected  by  the  charter  party  can 
conveniently  be  accomplished  without  the  transfer  of  the  vessel  to 
the  charterers,  courts  of  justice  are  not  inclined  to  regard  the  con- 
tract as  a  demise  of  the  ship,  although  there  may  be  express  words 
of  grant  in  the  formal  part  of  the  instrument. 

The  master  remains  the  agent  of  the  owner  under  any  contract  • 
falling  short  of  a  demise,  and  the  owner  is  bound  by  all  his  acts 
and  omissions  within  the  scope  of  his  authority  as  in  the  ordinary 
relation  of  carriage  by  sea.  If  the  instrument  amounts  to  a 
demise,  the  master  is  the  charterer's  agent,  and  not  that  of  the-- 
owner.  Bills  of  lading  or  other  contracts  of  affreightment  signed 
by  the  master  bind  the  owner  or  the  owner  pro  hac  vice  on  the 
theory  of  the  master's  agency.  This  subject  is  discussed  in  the 
case  of  Freeman,  i8  How.  182,  quoted  extensively  in  Chapter  HI, 
§  10,  supra.  Charter  parties  frequently  contain  a  clause  whereby 
the  charterer  agrees  to  indemnify  the  shipowner  against  any  lia- 
bility arising  from  the  signature  of  bills  of  lading  by  the  master. 
Probably  this  clause  would  be  implied  in  a  charter  party  if  not 
expressed  therein.  This  gives  the  owner  of  the  ship  a  right  of 
action  over  against  the  charterer  on  account  of  any  liability  to 
which  the  shipowner  or  ship  may  have  been  subjected  at  the 
hands  of  the  shipper.  Thus  if  the  charter  party  contained  cove- 
nants for  the  protection  of  the  shipowner  under  certain  circum- 
stances and  the  bill  of  lading  issued  by  the  master  did  not  contain 
these  restrictions  and  the  shipper  recovered  under  the  bill  of  lading 
against  the  ship  or  her  owner,  the  latter  in  turn  could  recover 
against  the  charterer  (Field  Line  v.  South  Atlantic  Co.,  201  Fed. 

301)- 

g.  Bills  of  Lading. —  The  forms  differ  greatly  in  contents  and 
legal  effect  but  have  the  common  features  of  an  acknowledgment 
of  the  receipt  of  the  goods ;  a  description  by  which  they  may  be- 
identified ;  an  agreement  to  carry  to  destination  and  dehver ;  the 
rate  of  freight  and  an  exception  of  certain  perils.  In  addition  to 
these  features  it  has  been  usual  to  include  more  or  less  elaborate 
provisions  tending  to  a  diminution  or  limitation  of  the  ship's  lia- 
bility, sometimes  extended  to  great  length  in  small  or  illegible 
type,  and  the  attempt  to  take  advantage  of  these  is  sometimes  de- 
scribed as  "  fine  print  and  coarse  work."     These  stipulations,  in 


CONTRACTS  93 

so  far  as  they  attempt  to  exempt  the  shipowner  from  the  conse- 
quences of  his  own  or  his  servants'  negligence  are  not  enforced 
in  courts  of  the  United  States  on  grounds  of  public  policy.  They 
probably,  however,  have  some  value  as  deterrents  of  claims  and 
litigation  but  should  be  studied  in  connection  with  the  Harter  Act 
(7  Comp.  St.  §§  8029-8035).  (See  Chapter  VIII,  p.  119.)  The 
common  carrier  by  sea  is  subject  to  the  same  rules  of  extraor- 
dinary liability  as  the  common  carrier  by  land  but  this  liability 
is  controlled  by  the  admiralty  law  of  limited  liability  (Liabil- 
ities and  Limitations,  Chapter  VIII,  p.  112)  and  the  provisions 
of  the  Harter  Act.  Like  the  land  carrier,  he  may  also  enlarge, 
or  diminish  his  liability  by  special  contract ;  such  a  contract  must 
be  clear  and  plain,  based  upon  a  meeting  of  minds,  due  consid- 
eration or  mutuality,  and  conformity  with  law ;  it  will  not,  how- 
ever, protect  against  negligence  on  the  part  of  the  carrier.  An 
example  is  found  in  the  Guildhall,  58  Fed.  796,  where  a  cargo 
was  damaged  in  a  collision  occasioned  by  improper  navigation. 
The  owners  of  the  ship  based  their  defense  on  a  provision  in  the 
bill  of  lading,  which  attempted  to  exempt  from  liabiHty  for  **  any 
neglect  or  defaults  of  the  master,  mariners,  or  others  in  the  serv- 
ice of  the  owners,  collision,  perils  of  the  seas,"  etc.     It  was  held: 

These  stipulations  are  valid  by  the  law  of  Rotterdam  (the  port  of 
departure),  and  of  England.  But  the  obligation  of  the  steamer,  as  a 
common  carrier,  was  to  deliver  her  cargo  safely  in  this  country,  at 
the  port  of  New  York.  As  against  the  consignee  and  owner  here, 
she  can  not  commit  torts  on  the  high  seas  against  his  property  with 
immunity,  nor  justify  such  torts,  except  by  some  valid  contract, 
proved  according  to  the  law  of  the  forum.  By  numerous  decisions 
of  the  Supreme  Court  of  the  United  States,  stipulations  like  these, 
inserted  by  a  common  carrier  in  a  bill  of  lading,  are,  first,  void  as 
against  public  policy;  and  secondly,  they  are  not  evidence  of  any 
contract  to  that  effect  on  the  part  of  the  shipper  and  consignee;  be- 
cause unreasonable  and  not  having  the  necessary  element  of  volun- 
tary assent. 

See  also  Compania  de  Navigacion  La  Flecha  v.  Brauer,  168  U.  S. 
104: 

Exceptions  in  a  bill  of  lading  or  charter-party,  inserted  by  the 
shipowner  for  his  own  benefit,  are  unquestionably  to  be  construed 
most  strongly  against  him. 

In  this  case  the  cargo  consisted  of  cattle,  and  the  bill  of  lading 
contained  this : 


94  THE  LAW  OF  THE  SEA 

On  deck  at  owner's  risk;  steamer  not  to  be  held  accountable  for 
accident  to  or  mortality  of  the  animals  from  whatever  cause  arising 
.  .  .  It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable 
for  loss  or  damage  occasioned  by  .  .  .  accidents  of  navigation,  of 
whatsover  kind,  even  when  occasioned  by  the  negligence,  default  or 
error  in  judgment  of  the  pilot,  master,  mariners  or  other  servants  of 
the  shipowner. 

The  vessel  was  improperly  ballasted  and  rolled  over  on  her  beam 
ends.  Some  of  the  cattle  were  injured  and  in  order  to  right  the 
ship  a  number  of  them  were  thrown  overboard,  no  discrimination 
being  exercised  between  sound  animals  and  those  which  had  been 
injured.  The  court  after  laying  down  the  general  principles 
above  quoted,  further  held: 

The  bill  of  lading  itself  shows  that  all  the  cattle  to  be  carried 
under  this  contract  were  to  be  on  deck.  The  words  "  on  deck  at 
owner's  risk  "  cannot  have  been  intended  by  the  parties  to  cover  risks 
from  all  causes  whatsoever,  including  negligent  or  willful  acts  of  the 
master  and  crew.  To  give  so  broad  an  interpretation  to  words  of 
exception,  inserted  by  the  carrier  and  for  his  benefit,  would  be  con- 
trary to  settled  rules  of  construction,  and  would  render  nugatory 
many  of  the  subsequent  stipulations  of  the  bill  of  lading. 

The  wrongful  jettison  of  the  sound  cattle  by  the  act  of  the  car- 
rier's servants  cannot  reasonably,  or  consistently  with  the  line  of 
English  authorities  already  cited,  or  with  our  own  decisions,  be  con- 
sidered either  as  an  "  accident  or  mortality  of  the  animals,"  or  as  a 
"  loss  or  damage  occasioned  by  causes  beyond  his  control,  by  the  perils 
of  the  sea,  or  other  waters,"  or  yet  as  a  loss  or  damage  "  by  collisions, 
stranding,  or  other  accidents  of  navigation."  There  having  been  no 
collision,  stranding,  or  other  accident  of  navigation,  there  was  noth- 
ing to  which  the  only  stipulation  in  the  bill  of  lading  against  the  con- 
sequence of  negligence,  default,  or  error  in  judgment  of  the  master 
and  crew  could  apply. 

The  bill  of  lading  may  be  both  a  receipt  and  a  contract  and" 
where  the  shipper  accepts  it  at  the  time  of  delivering  his  goods, 
he  is  presumed  to  have  agreed  to  its  stipulations  so  far  as  they  are 
reasonable  and  just.  Such  a  contract  merges  all  prior  and  con- 
temporaneous negotiations  and  precludes  parole  evidence  to  vary 
its  terms,  but  the  subsequent  delivery  of  a  bill  of  lading  will  not 
necessarily  affect  a  prior  agreement,  written  or  verbal,  for  the 
carriage ;  in  other  words,  when  a  contract  has  been  already  made, 
the  carrier  cannot  change  it  by  a  bill  of  lading  without  the  shipper's 

consent. 

If  the  holder  of  the  bill  of  lading  is  also  tlie  charterer  the 


CONTRACTS  95 

rights  and  obligations  of  the  parties  will  ordinarily  be  governed 
by  the  charter  party.  Where  the  bill  of  lading  incorporates  the. 
charter  party  by  reference  to  it,  of  course  the  holder  of  the  bill 
of  lading  is  bound  by  the  temis  of  the  charter  party.  Where  the 
charter  party  provides  that  bills  of  lading  are  to  be  made  subject 
to  the  provisions  of  the  charter,  the  rights  of  the  holder  of  the 
bill  of  lading  are  subject  to  the  charter  party  if  he  had  knowledge 
or  notice  of  it. 

A  suit  in  which  a  conflict  arose  between  a  bill  of  lading 
issued  by  a  charterer  and  master,  and  a  charter  party  of  prior 
date,  was  the  early  case  of  Gracie  v.  Palmer,  8  Wheat.  605.  The 
owners  of  the  ship  America  chartered  her  at  Philadelphia  for  a 
long  voyage,  the  whole  charter  hire  to  be  paid  on  the  return  of  the 
ship  to  Philadelphia,  but  before  the  discharge  of  cargo.  The 
owners  appointed  the  master.  In  Calcutta,  the  charterer,  who 
was  on  board,  with  the  master's  consent,  got  an  advance  of  money 
from  Palmer  &  Company,  a  Calcutta  firm,  and  gave  Palmer  & 
Company  a  bill  of  lading  which  stipulated  for  the  delivery  of  the 
cargo  free  of  freight  to  Palmer  &  Company's  agent  in  Philadel- 
phia, who  were  to  sell  the  goods  and  collect  the  amount  of  the 
advance  out  of  the  proceeds,  unless  the  charterer's  drafts  for  the 
amount  of  the  advance,  drawn  in  Palmer  &  Company's  favor  on 
a  Philadelphia  house,  should  be  honored,  in  which  event  Palmer  & 
Company's  agents  should  deliver  the  goods  to  the  charterer.  The 
master  signed  the  bill  of  lading  given  to  Palmer  &  Company  in 
Calcutta,  which  contained  the  clause,  "  Freight  for  the  said  goods 
having  been  settled  here."  The  drawee  refused  to  accept  the 
charterer's  drafts,  and  Palmer  &  Company's  Philadelphia  agent 
accordingly  demanded  the  goods  on  the  arrival  of  the  ship.  It 
was  held,  sustaining  the  contention  of  Daniel  Webster,  who  repre- 
sented the  owners,  that  the  shipowner  had  a  lien  on  the  cargo  for 
the  charter  hire,  the  Court  saying : 

On  what  principles  rests  the  general  lien  of  goods  for  freight? 
The  master  is  the  agent  of  the  shipowner,  to  receive  and  transport; 
the  goods  are  improved  in  value,  by  the  costs  and  cares  of  transpor- 
tation. As  the  bailee  of  the  shipper,  the  goods  are  in  the  custody 
and  possession  of  the  master  and  shipowner,  and  the  law  will  not 
suffer  that  possession  to  be  violated,  until  the  laborer  has  received  his 
hire.  But  this  is  literally  the  effect  of  that  provision  in  the  charter 
party  which  deprives  the  charterer  of  the  right  of  landing  the  cargo 
until  the  stipulated  hire  be  paid ;  or  rather  it  would  seem  to  go  beyond 


96  THE  LAW  OF  THE  SEA 

it,  and  impose  a  liability  beyond  what  the  common  law  exacts.  It 
may,  therefore,  be  fairly  construed  into  a  stipulation,  that  the  char- 
terer should,  under  no  circumstances,  dispense  with  the  legal  lien  of 
the  shipowner. 

•  •  •  •  •-•  •  •  •  •  • 

That  the  shipowner  would  not  confide  in  the  charter  to  land  his 
goods  without  buying  off  his  right  to  detain,  is  expressly  proved 
by  the  contract.  That  contract  was  accessible  to  the  foreign  ship- 
per, and  ought  to  have  been  looked  into  to  determine  the  extent  of 
the  power  vested  in  the  charterer  .  .  .  The  charterer  has  contracted 
with  the  shipper  to  do  an  act,  which  he  could  not  perform  without 
violating  his  own  contract  to  the  shipowner,  and  must  therefore  be 
considered  as  having  entered  into  a  contract,  subordinate  in  its  nature 
to  that  previously  existing  between  the  owner  and  charterer. 

On  the  other  hand,  it  is  held  that  the  innocent  bona  fide  endorsee 
of  a  bill  of  lading,  which  makes  no  reference  to  the  charter  party, 
and  contains  nothing  to  put  him  on  notice  or  inquiry  as  to  the  ex- 
istence of  the  charter  party,  is  liable  for  freight  only  according  to 
the  terms  of  the  bill  of  lading. 

10.  Statements  in  Bills  of  Lading. —  The  bill  of  lading  com- 
monly contains  a  statement  of  the  number  of  packages  or  the 
weight  of  the  goods  or  other  representations  with  regard  to  the 
quantity  shipped.  There  are  several  rules  applicable  to  the  effect 
of  such  statements.  Where  they  appear  in  bills  of  lading  covering 
shipments  in  interstate  commerce  or  shipments  from  the  United 
States  to  foreign  ports,  the  effect  of  such  statements  is  governed 
by  the  Federal  Bill  of  Lading  Act,  approved  August  29,  1916  / 
(39  St.  at  L.  538).  Under  this  act  (§  20)  if  the  goods  are  laden  / 
by  the  carrier  he  is  bound  to  count  the  packages,  or  ascertain  the 
kind  and  quantity  of  bulk  cargo.  He  is  forbidden  to  insert  in  the 
bill  of  lading  or  in  any  other  document  relating  to  the  ship  any 
expression  such  as  "  shipper's  weight,  load  and  count,"  or  any 
language  indicating  that  the  goods  were  loaded  by  the  shipper  and 
the  description  of  them  made  by  him.  Where  the  goods  are 
loaded  by  the  shipper  the  act  provides : 

Section  21.  That  when  package  freight  or  bulk  freight  is  loaded 
by  a  shipper  and  the  goods  are  described  in  a  bill  of  lading  merely  by 
a  statement  of  marks  or  labels  upon  them  or  upon  packages  contain- 
ing them,  or  by  a  statement  that  the  goods  are  said  to  be  goods  of  a 
certain  kind  or  quantity,  or  in  a  certain  condition,  or  it  is  stated  in  the 
bill  of  lading  that  packages  are  said  to  contain  goods  of  a  certain 
kind  or  quantity  or  in  a  certain  condition,  or  that  the  contents  of 
packages  are  unknown,  or  words  of  like  purport  are  contained  in  the 


CONTRACTS  97 

bills  of  lading,  such  statements,  if  true,  shall  not  make  liable  the 
carrier  issuing  the  bill  of  lading,  although  the  goods  are  not  of  the 
kind  or  quantity  or  in  the  condition  which  the  marks  or  labels  upon 
them  indicate,  or  of  the  kind  or  quantity  or  in  the  condition  they  were 
said  to  be  by  the  consignor.  The  carrier  may  also  by  inserting  in 
the  bill  of  lading  the  words  "  Shipper's  weight,  load  and  count,"  or 
other  words  of  like  purport  indicate  that  the  goods  were  loaded  by 
the  shipper  and  the  description  of  them  made  by  him ;  and  if  such 
statement  be  true,  the  carrier  shall  not  be  liable  for  damages  caused 
by  the  improper  loading  or  by  the  non-receipt  or  by  the  misdescrip- 
tion of  the  goods  described  in  the  bill  of  lading:  Provided,  however. 
Where  the  shipper  of  bulk  freight  installs  and  maintains  adequate 
facilities  for  weighing  such  freight,  and  the  same  are  available  to 
the  carrier,  then  the  carrier,  upon  written  request  of  such  shipper  and 
when  given  a  reasonable  opportunity  so  to  do,  shall  ascertain  the 
kind  and  quantity  of  bulk  freight  within  a  reasonable  time  after  such 
written  request,  and  the  carrier  shall  not  in  such  cases  insert  in  the 
bill  of  lading  the  words  "  Shipper's  weight,"  or  other  words  of  like 
purport,  and  if  so  inserted  contrary  to  the  provisions  of  this  section, 
said  words  shall  be  treated  as  null  and  void  and  as  if  not  inserted 
therein. 

This  act  of  Congress  has  no  application  to  bills  of  lading  for 
goods  shipped  from  foreign  ports  and  the  rules  governing  repre- 
sentations in  such  bills  of  lading  are  different.  Bills  of  lading  for 
shipment  from  foreign  ports  when  issued  by  the  master  do  not 
bind  the  shipowner  of  the  vessel  for  the  number  of  packages  or 
quantity  of  goods  which  the  bill  represents  as  having  been  shipped. 
This  is  the  rule  which  prevailed  as  to  all  bills  of  lading  prior  to 
the  passage  of  the  act.  It  is  based  on  the  theory  that  the  implied 
agency  of  the  master  for  the  shipowner  does  not  extend  to  making 
misrepresentations  in  the  bill  of  lading,  so  as  to  make  it,  as 
against  the  shipowner,  a  receipt  for  goods  not  received.  It  was 
intended  to  protect  the  shipowner  against  frauds  committed  col- 
lusively  between  the  master  and  shipper  who  have  been  known  to 
enter  into  conspiracies  whereby  the  master  issued  false  bills  of 
lading  upon  which  the  shipper  subsequently  raised  money  by 
assigning  the  bill. 

There  is  another  class  of  representations  commonly  found  in 
the  bill  of  lading  relating  to  the  condition  of  the  goods,  as  that 
they  are  in  *'  good  condition  "  or  *'  damaged  condition."  Where 
the  goods  are  loaded  by  the  shipper  the  effect  of  such  statements  is 
governed  by  §  21  of  the  Bill  of  Lading  Act,  above  quoted,  as  to 
shipments  in  interstate  commerce  or  from  United  States  ports. 


98  THE  LAW  OF  THE  SEA 

In  other  cases,  e.g.,  where  the  carrier  does  the  loading  or  where 
the  act  is  not  applicable,  the  rule  is  that  representation  made  by 
the  master  in  the  bill  of  lading  as  to  condition,  bind  the  shipowner 
where  the  bill  of  lading  has  passed  into  the  hands  of  a  bona  fide 
holder  for  value,  the  theory  being  that  representations  as  to  order 
and  condition  are  within  the  scope  of  the  master's  authority, 

II.  Negotiability  of  Bills  of  Lading. —  In  mercantile  law  cer*' 
tain  things  have  the  quality  of  negotiability,  that  is,  they  are  like 
money  in  that  the  title  may  pass  from  hand  to  hand  by  delivery 
without  the  necessity  of  inquiry  into  the  antecedent  ownership. 
Promissory  notes,  checks  and  drafts,  payable  to  order  or  bearer, 
or  so  endorsed,  are  negotiable  and  the  holder's  title  is  not  afifected 
by  any  representations  or  transactions  between  the  original  par- 
ties or  prior  holders,  without  his  knowledge.  Many  attempts 
have  been  made  to  give  bills  of  lading  the  full  quality  of  negotia- 
bility, but  the  courts  have  not  favored  the  effort.  Bills  of  lading 
are  said  to  be  quasi-negotiable.  They  may  be  transferred  by  en- 
dorsement and  delivery  and  thereby  pass  the  same  title  to  tht 
goods  which  they  represent  as  if  the  goods  themselves  were  han- 
dled. But  prior  to  the  passage  of  the  Federal  Bill  of  Lading  Act, 
above  mentioned,  the  transferee  took  only  the  title  of  his  trans- 
feror, subject  to  all  rights  which  may  have  been  asserted  against 
him.  The  bill  of  lading  remained  a  mere  substitute  for  the  goods 
and  the  purchaser  of  a  stolen  bill,  for  example,  acquired  no  more 
title  than  he  would  in  the  case  of  stolen  goods.  The  latest  legis- 
lation designed  to  confer  upon  bills  of  lading  the  quality  of  ne^^ 
gotiable  paper  is  that  contained  in  §  22  of  the  Bill  of  Lading  Act, 
which  is  as  follows : 

That  if  a  bill  of  lading  has  been  issued  by  a  carrier  or  on  his  be- 
half by  an  agent  or  employee  the  scope  of  whose  actual  or  apparent 
authority  includes  the  receiving  of  goods  and  issuing  bills  of  lading 
therefor  for  transportation  in  commerce  among  the  several  States 
and  with  foreign  nations,  the  carrier  shall  be  liable  to  (a)  the  owner 
of  goods  covered  by  a  straight  bill  subject  to  existing  rights  of  stop- 
page in  transition  or  (b)  the  holder  of  an  order  bill,  who  has  given 
value  in  good  faith,  relying  upon  the  description  therein  of  the  goods, 
for  damages  caused  by  the  nonreceipt  by  the  carrier  of  all  or  part  of 
the  goods  or  their  failure  to  correspond  with  the  description  thereof 
in  the  bill  at  the  time  of  the  issue. 

This  appears  to  protect  a  person  to  whom  a  bill  of  lading  has 
been  negotiated  for  value  and  who  took  it  in  good  faith,  relying 


CONTRACTS  99 

upon  representations  contained  in  it.  A  word  of  caution,  how- 
ever, is  necessary.  The  provision  is  recent  and  has  not  been  con- 
strued by  the  highest  courts  in  a  case  involving  a  shipment  by  sea. 
The  disposition  of  the  courts  has  been  to  construe  such  legislation 
strictly.  The  act  was  intended  to  reverse  the  rule  laid  down  in  a 
line  of  decisions  consistently  adhered  to  by  the  Supreme  Court 
down  to  the  time  of  its  passage.  There  can  be  no  little  doubt  that 
any  one  seeking  to  maintain  an  action  under  §  22  of  the  act  would 
have  to  bring  himself  strictly  within  the  description  of  persons 
embraced  in  items  (a)  or  (b)  contained  in  the  section. 

12.  Duration  of  Carrier's  Liability. —  The  carrier's  liability 
begins  when  he  receives  the  goods  for  immediate  transportation. 
He  is  not  liable  as  a  carrier  if  he  receives  the  goods,  but  is  ordered 
not  to  ship  them  pending  further  instructions  from  the  consignor. 
In  such  case  he  remains  a  mere  bailee,  or  perhaps  a  warehouseman, 
until  the  voyage  actually  begins.  The  carrier's  liability  ends  when 
he  gives  notice  of  the  arrival  of  the  goods  and  has  aflforded  the 
consignee  a  reasonable  opportunity  to  remove  them.  He  may  go 
farther  and  stipulate  in  the  bill  of  lading  to  terminate  his  responsi- 
bility as  carrier  immediately  upon  the  putting  of  the  goods  ashore. 

13.  Exceptions  in  Bills  of  Lading. —  In  addition  to  perils  of 
the  sea,  deviation  and  restraint  of  princes,  which  have  already 
been  mentioned,  bills  of  lading  frequently  contain  language  de- 
signed to  protect  .the  carrier  from  liability  for  such  things  as  dam- 
age due  to  breakage,  leakage,  heat,  etc.  Clauses  of  this  kind  will 
avail  the  carrier  as  a  defense  against  suits  for  damages  due  to 
these  causes  provided  the  carrier  is  free  from  negligence.  Inas- 
much as  these  exceptions  are  in  the  nature  of  exemptions  from  a 
liability  which  is  imposed  by  the  policy  of  the  law,  the  tendency 
of  the  courts  is  to  interpret  them  with  strictness  against  the  carrier. 

A  provision  in  a  bill  of  lading  exempting  the  carrier  from  loss^ 
by  theft  will  not  relieve  him  from  liability  on  account  of  a  theft 
committed  by  a  person  in  his  employ,  such  as  an  officer  of  the 
vessel  or  a  member  of  the  crew. 

14.  Valuation. —  There  is  some  divergence  in  the  decisions  of 
the  courts  involving  the  valuation  of  the  goods  which  is  frequently 
stated  in  the  bill  of  lading.  If  the  language  of  the  bill  indicates 
that  the  amount  stated  is  a  limit  or  that  the  value  is  limited  to  the 
invoice  price,  the  shipper  may  recover  his  actual  loss  up  to  but  not 
exceeding  that  amount,  subject  to  the  invariable  rule  that  a  man 


loo  THE  LAW  OF  THE  SEA 

may  not  contract  for  relief  from  the  consequences  of  his  own  neg- 
ligence. The  right  of  recovery  on  the  valuation  clause  depends 
upon  whether  the  owner  of  the  goods  has  been  subjected  to  loss. 
Thus  if  after  the  accident  or  injury  the  goods  continue  to  be  worth  . 
the  amount  of  the  valuation  there  is  no  loss  and  consequently  there 
can  be  no  recovery.  The  valuation  clause  cannot  be  used  for  the 
purpose  of  exempting  the  carrier  from  liability  for  all  goods  above,, 
a  certain  value.  As  is  succinctly  stated  in  the  syllabus  of  Calderon 
V.  Atlas  Steamship  Co.,  170  U.  S.  272,  42  L.  ed.  1033 : 

A  stipulation  in  a  bill  of  lading,  that  the  carrier  shall  not  be  liable 
for  goods  of  any  description  which  are  above  the  value  of  $100  per 
package  unless  special  agreement  is  made  therefor,  does  not 
mean  that  the  liability  is  limited  to  $100  per  package  for  such  goods, 
but  that  the  carrier  shall  not  be  liable  for  them  to  any  amount,  and  is 
therefore  void,  under  the  Harter  Act,  as  an  attempt  of  the  carrier  to 
exonerate  itself  from  all  responsibility  for  such  goods. 

15.  Notice  of  Claim. —  It  is  very  important  for  shippers  to 
observe  the  provisions  usually  contained  in  bills  of  lading  to  the 
effect  that  the  carrier  will  not  be  liable  unless  notice  of  loss  be  ''"^ 
given  within  a  certain  limited  time  as  such  clauses  are  legal  and 
enforceable,  and  if  not  complied  with,  the  shipper  will  lose  his 
right  of  action. 

16.  Nature  and  Effect  of  Charter  Party. —  This  may  be  ior-y 
mal  or  informal,  written  or  verbal,  as  the  parties  choose,  but  care- 
ful business  men  will  prefer  to  have  it  executed  with  the  same 
care  and  detail  as  is  usually  given  to  contracts  of  so  important  a 
nature.  The  operations  under  a  charter  always  involve  large  re- 
sponsibilities and  liabilities  upon  some  one,  primarily  upon  the 
ship  but  ultimately  upon  the  parties  to  the  agreement.  The  ad- 
justment of  these  by  appropriate  language  necessitates  a  carefully 
drawn  document  and  while  many  printed  forms  are  in  general  use 

in  various  ports  they  should  only  be  employed  when  both  parties 
thoroughly  understand  the  import  of  their  provisions.  The  effect 
of  the  agreement  may  be  to  create  a  contract  of  carriage  on  the 
part  of  the  owner  or  to  completely  divest  him  of  any  control  over 
his  ship.  Where  he  merely  rents  or  lets  the  carrying  capacity,  in 
whole  or  part,  but  retains  possession,  command  and  navigation 
through  his  own  master  and  crew,  he  is  the  carrier  and  the  charter 
is  a  contract  of  affreightment.  Where  he  transfers  the  temporary 
ownership  by  relinquishing  these  things  to  the  charterer,  so  that 


CONTRACTS  loi 

the  latter  hires  the  officers  and  crew  and  operates  the  ship,  he  is 
not  in  the  position  of  a  carrier  and  is  freed  from  obHgations  on 
her  account,  though  the  ship  herself  remains  responsible. 

Charters  are  of  various  kinds.  A  charter  party  which  turns 
over  the  full  control  and  operation  of  the  ship  to  the  charterer  is 
called  a  demise  of  the  ship.  This  may  be  for  a  fixed  term,  or  for 
a  particular  voyage.  In  commercial  practice,  however,  charters 
for  a  fixed  term,  that  is  to  say  time  charters,  seldom  amount  to  a 
demise  of  the  ship,  but  are  usually  mere  contracts  of  affreight- 
ment. A  charter  party  for  a  particular  voyage  is  called  a  voyage 
charter.  In  usage  such  a  charter  may  amount  to  a  demise  or  may 
not,  depending  on  whether  or  not  the  full  control  and  operation 
of  the  ship  is  surrendered  to  the  charterer.  A  charter  which 
amounts  to  a  demise  is  sometimes  termed  a  bare  boat  charter. 
Under  a  charter  which  amounts  to  a  demise,  the  owner  will  re- 
quire payment  of  the  charter  money  or  freight  in  such  install- 
ments as  are  agreed,  the  maintenance  of  his  ship  in  good,  sea-' 
worthy  condition,  protection  against  maritime  liens  and  the  prompt 
payment  of  all  her  expenses,  and  her  return  to  him  in  like  condi- 
tion as  when  taken  at  the  termination  of  the  contract.  The  char- 
terer will  require  undisturbed  possession  of  the  ship  so  long  as  he 
is  not  in  default  and  agrees,  that  in  event  of  default,  the  owner 
may  cancel  and  resume  possession.  Provision  should  also  be  made 
for  insurance  and  stipulated  value  in  event  of  damage  or  total  loss. 

17.  Subcharters. —  In  the  absence  of  any  prohibition  in  the  or- 
iginal charter,  a  charterer  may  execute  a  subcharter  or  may  assign 
the  original  charter. 

18.  Provisions  in  Charter  Parties. —  The  legal  construction  01 
a  charter  party  is  governed  by  the  rules  of  the  law  of  contract. 
Material  representations  of  fact  contained  in  the  instrument  as 
inducements  to  the  contract  must  be  true  or  the  contract  will  not 
be  binding  on  the  opposite  party.  Such  representations  are  state- 
ments relating  to  the  size,  capacity,  speed,  condition  and  location 
of  the  ship. 

(a)  Safe  Port. —  Among  other  provisions  of  the  contract,  espe- 
cially in  time  charters,  is  usually  one  to  the  effect  that  the  vessel*' 
is  to  be  employed  only  between  safe  ports.  A  safe  port  is  one  in 
which  the  physical  conditions  do  not  ordinarily  expose  a  vessel  to 
danger.  Thus  a  port  entirely  exposed  to  the  weather  has  been 
held  unsafe,  as  have  ports  blocked  by  dangerous  bars.     A  port  in 


I02  THE  LAW  OF  THE  SEA 

which  the  vessel  would  be  liable  to  forfeiture  in  time  of  war  be- 
cause of  her  nationality  has  been  held  unsafe. 

(b)  Insurance. —  Where  a  time  charter  provides  that  the  owner  . 
shall  pay  for  the  insurance  the  reference  is  to  insurance  for  the^ 
benefit  of  the  owner  and  not  that  of  the  charterer. 

(c)  Redelivery. —  While  a  time  charter  is,  as  the  name  implies, 
a  contract  for  the  definite  period  of  time  expressed  in  the  charter, 

it  is  obvious  that  the  exigencies  of  navigation  frequently  render  it  ^ 
impossible  to  redeliver  the  vessel  on  the  precise  date  when  the' 
period  expires.  It  is  customary,  therefore,  to  provide  that  the 
charter  hire  shall  continue  at  the  same  rate  until  the  time  of  re- 
delivery unless  the  vessel  be  lost.  It  is  the  duty  of  the  charterer 
to  redeliver  the  vessel  as  nearly  as  possible  to  the  expiration  date  of 
the  charter,  but  if  the  vessel  is  delayed  through  no  fault  of  his, 
he  cannot  be  held  in  damages  for  breach  of  the  charter,  even 
though  he  may  not  be  able  to  make  redelivery  for  months  beyond 
the  expiration  date.  So  long  as  the  delay  be  practically  unavoid- 
able, he  is  liable  merely  for  the  stipulated  charter  hire  until  re- 
delivery, and  not  in  damages  for  breach  of  the  charter  (Ander- 
son V.  Munson,  104  Fed.  913). 

The  word  *'  about "  as  a  qualification  of  the  charter  period  is 
sometimes  inserted  in  time  charters,  as  a  further  protection  to  the 
charterer,  but  it  does  not  diminish  his  obligation  to  surrender  the 
vessel  as  nearly  as  possible  to  the  expiration  date. 

(d)  Cancellation  and  Withdrawal. —  Charters  usually  contain 
a  clause  which  provides  that,  if  the  vessel  fails  to  arrive  at  the 
loading  port  by  a  certain  date,  in  condition  to  be  laden  —  i.e., 
with  cargo  space  available  —  the  charterers  may  cancel  the  obli-- 
gation.  The  clause  does  not  entitle  the  vessel  to  loaf  toward  the 
loading  port  so  as  just  to  arrive  by  the  cancellation  date.  If  she 
does  not  proceed  with  reasonable  promptness,  the  charterer  will 
be  entitled  to  damages,  even  though  she  arrive  by  the  cancellation 
date. 

Correlative  to  the  charterer's  right  of  cancellation,  it  is  usual 
for  charter  parties  to  contain  a  provision  to  the  effect  that  charter 
hire  is  to  be  paid  in  advance  and  that  in  default  of  such  payment 
the  owner  shall  be  entitled  to  withdraw  the  vessel  from  the  char- 
terer. 

(e)  The  Breakdown  Clause. —  Time  charters  frequently  pro- 


CONTRACTS 


103 


vide  that  in  the  event  of  loss  of  time  arising  from  the  breakdown 
of  machinery,  lack  of  men  or  supplies  for  more  than  twenty-four 
hours,  the  payment  of  charter  hire  shall  be  suspended  for  the  pe- 
riod from  which  she  is  inoperative,  but  if  the  vessel  is  driven  into 
port  by  circumstances  of  weather  or  accident  to  cargo,  the  loss  of-' 
time  due  to  these  causes  shall  fall  upon  the  charterer.  Such  pro- 
visions are  en  forcible  according  to  their  language  and  intent. 
If  the  breakdown  endures  beyond  the  period  of  twenty-four  hours 
the  charter  hire  ceases  not  only  for  the  excess,  but  for  the  twenty- 
four  hours  also. 

19.  Lien  for  Freight  and  Charter  Hire. —  It  is  fundamental 
that  the  goods  carried  are  liable  for  the  carrying  charges,  but  the 
questions  arise :  In  whose  favor  does  the  liability  exist,  and  dur- 
ing what  period  does  it  exist?  The  lien  for  freight  exists  in  favor- 
of  the  person  with  whom  the  shipper  contracts  to  carry  the  goods. 
Where  the  shipowner  is  operating  the  vessel  on  his  own  account 
as  a  carrier,  the  lien  for  freight  exists  in  his  favor.  Where  the 
vessel  is  chartered  the  contract  of  carriage  is  between  the  shipper 
and  the  charterer,  and  the  lien  for  freight  exists  in  favor  of  the 
charterer.  The  owner  of  a  chartered  ship  has  no  lien  for  freight 
(unless  conferred  by  the  cesser  clause,  mentioned  below),  but  he 
may  have  a  lien  on  the  goods  to  the  extent  of  the  unpaid  freight  for 
the  purpose  of  securing  his  charter  hire.  This  lien  does  not  exist 
in  favor  of  an  owner  who  has  demised  or  let  the  ship  to  the  char- 
terer, unless  there  is  an  express  stipulation  to  that  effect. 

The  so-called  "  cesser  clause  "  is  to  the  effect  that  "  owner  to 
have  lien  on  cargo  for  freight,  dead-freight,  and  demurrage,  char- 
terer's liability  to  cease  when  cargo  shipped."  The  purpose  of  this 
clause  is  to  bring  the  charterer's  liability  to  an  end  at  the  loading 
port.  In  return  for  his  exemption  from  liability  to  suit  at  the 
port  of  destination,  he  turns  over  to  the  shipowner  his  lien  on  the 
cargo  for  freight,  dead-freight  and  demurrage. 

Possession  of  the  goods  is,  generally  speaking,  essential  to  the 
lien  for  freight  or  charter  hire.  It  does  not  attach  until  the  goods 
have  been  delivered  for  transportation.  If,  by  contract,  ex- 
pressed in  the  bill  of  lading  or  otherwise,  the  freight  is  not  pay- 
able until  after  the  goods  have  been  delivered,  there  is  no  lien, 
and  the  same  is  true  if  the  freight  is  payable  at  a  time  and  place 
other  than  those  specified  for  the  delivery  of  cargo.     Ordinarily 


104  THE  LAW  OF  THE  SEA 

the  lien  is  discharged  when  possession  of  the  goods  is  parted  with ; 
or  by  express  waiver ;  or  by  implied  waiver,  such  as  a  direction  to ' 
pay  the  freight  to  another  person. 

It  is  usual  to  insert  in  time  charters  a  clause  providing  for  a 
lien  for  charter  hire.  Such  provisions  are  valid,  but  they  are  not 
effective  against  the  cargo  unless  the  terms  of  the  charter  have 
been  brought  home  to  the  shipper  by  a  reference  to  the  charter  in 
the  bill  of  lading,  which  is  commonly  done.  To  incorporate  the 
charter  in  the  bill  of  lading  the  reference  to  the  charter  in  the  bill 
must  be  explicit. 

20.  Liability  for  Loss  or  Damage. —  In  the  case  of  goods, 
there  is  a  primary  liability  on  the  ship. 

The  liability  of  a  vessel  in  rem  for  want  of  due  diligence  in  the 
care  and  custody  of  the  goods  received  on  board  for  transportation 
ia  the  same  whether  the  owners  of  the  ship  remain  in  possession  as 
carriers  or  whether  the  terms  of  the  charter  party  are  such  as  to 
constitute  a  demise  of  the  vessel  for  the  voyage,  so  as  to  render  the 
charterers  the  owners  pro  hac  vice  and  alone  personally  responsible 
for  the  transportation.     The  T.  A.  Goddard,  12  Fed.  174. 

As  between  the  shipowner  and  the  charterer,  this  will  be  borire 
as  the  charter  party  provides.  In  the  case  of  loss  or  damage  to 
the  ship,  the  contract  again  controls  if  its  provisions  are  explicit. 
If  not,  the  ordinary  rules  of  bailment  of  personal  property  con- 
trol. If  the  charter  amounts  to  a  demise  of  the  ship,  the  charterer 
is  liable,  for  he  engages  to  return  the  ship  without  injury  by  rea- 
son of  his  own  negligence ;  if  not  a  demise,  the  shipowner  bears  the 
loss.  For  losses  caused  by  perils  of  the  seas  or  by  ordinary  wear 
and  tear,  without  negligence  on  his  part,  the  charterer  is  not  liable 
in  the  absence  of  an  express  stipulation. 

In  the  case  of  the  Barnstable,  181  U.  S.  464,  the  vessel  was 
chartered,  the  charterer  employing  the  ofifacers  and  crew  to  navi- 
gate her,  as  well  as  providing  the  ship's  stores,  supphes  and  fuel, 
and  undertaking  to  pay  all  pilotage,  port  charges  and  other  ex- 
penses. The  owner  was  to  keep  the  vessel  insured  and  in  repair. 
She  came  into  collision  with  the  schooner  Fortuna.  The  owners 
of  the  Fortuna  libeled  the  Barnstable  and  the  owners  of  the  latter 
vessel  called  upon  the  charterers  to  defend  the  suit.  It  was  con- 
ceded that  the  collision  and  the  consequent  damage  were  due  to 
the  negligent  operation  of  the  Barnstable  by  the  officers  and  crew 
employed  by  the  charterers  to  operate  her.    The  court  held  that 


CONTRACTS  105 

the  owners  of  the  damaged  schooner  were  entitled  to  look  to  the 
offending  vessel  for"^  their  damages.  As  between  the  owner  and 
the  charterer  it  was  held  that  the  charter  amounted  to  a  demise 
and  the  charterer  was  the  temporary  owner.  He  was  therefore 
liable  to  the  real  owner,  since  he  was  bound  to  return  the  vessel. 
In  the  report  of  the  argument  of  this  case  many  authorities  are 
cited  showing  the  circumstances  under  which  a  charter  party  be- 
comes a  demise  of  the  vessel. 

In  a  contract  of  affreightment  or  charter  not  amounting  to  a 
demise  —  and  this  embraces  time  charters  —  the  duty  of  naviga- 
tion rests  upon  the  shipowner.  He  is  responsible  for  any  damage 
due  to  negligence  in  navigation,  even  though  the  negligent  indi- 
vidual had  been  employed  by  the  charterer.  In  charters  of  this 
class  the  shipowner  is  also  responsible  for  loading  and  discharg- ' 
ing  cargo.  Stevedores  are  ordinarily  regarded  as  being  in  the 
employ  of  the  ship. 

21.  Demurrage  and  Laydays. —  Time  is  usually  of  the  essence 
of  maritime  and  commercial  transactions.  Both  parties  must  be 
punctual  in  the  performance  of  their  obligations.  The  shipowner 
must  have  the  vessel  at  the  appointed  place  and  time  for  delivery 
to  the  charterer  or  to  receive  the  cargo,  as  the  agreement  requires. 
The  charterer  must  be  on  hand  to  receive  her  or  to  deliver  the 
cargo  for  loading.  The  ship  must  pursue  the  voyage  without 
deviation  or  delay.  The  consignee  must  be  ready  to  receive  his 
goods  on  their  arrival.  Failure  to  observe  these  requirements 
creates  a  liability  for  the  damages  ensuing  or  may  dissolve  the 
charter.  If  the  contract  is  express  in  regard  to  these  stipulations, 
no  excuses  will  be  useful  unless  they  can  be  found  in  the  agree- 
ment itself.  It  is  usual  to  provide  for  these  obligations  under  the 
name  of  demurrage.  Of  course,  where  the  charter  is  for  a  defi- 
nite period  of  time,  they  are  unimportant,  but  otherwise,  if  it  is 
for  one  or  more  voyages.  The  charterer  has  a  number  of  days  at 
his  disposal  for  loading  and  discharging  the  cargo.  These  are 
termed  laydays.  If  not  specially  provided,  or  fixed  by  the  usage 
of  the  port  or  trade,  a  reasonable  number  will  be  implied.  For 
the  excess,  the  ship  is  entitled  to  demurrage  to  cover  her  loss  of 
time  and  expenses,  either  at  the  rate  named  in  the  charter  or  of 
such  amount  as  may  be  proved. 

Until  the  laydays  have  expired  there  is  no  breach  of  the  con- 
tract to  load,  but  where  the  charterer  refuses  to  accept  the  vessel 


io6  THE  LAW  OF  THE  SEA 

or  provide  a  cargo,  the  owner  need  not  keep  her  in  readiness  for 
delivery  during  all  the  laydays. 

What  constitutes  readiness,  or  under  what  circumstances  a 
ship  is  an  "  arrived  ship,"  depends  upon  the  terms  of  the  bar- 
gain. Thus  if  the  charterer  requires  her  to  reach  her  berth  a 
notice  given  when  she  is  in  the  stream  will  be  insufficient.  If  she 
is  to  report  for  loading  cargo  she  must  have  her  loading  apparatus 
ready  and  her  cargo  space  available.  The  notice  must  actually 
reach  the  charterer  unless  he  prevents  it  by  absenting  himself  or 
his  representative  from  the  place  where  it  is  to  be  given.  Notice 
should  not  be  given  on  Sunday  or  a  holiday,  unless  the  charter 
expressly  permits  it. 

In  accordance  with  the  general  principle  of  the  law  of  contract, 
laydays  do  not  run  if  delay  in  loading  or  discharge  is  caused  by 
the  master  or  owner. 

■    It  is  the  duty  of  the  charterer  to  have,  his  cargo  ready  and  he  is 
liable  for  demurrage  on  account  of  the  delay  in  furnishing  cargo. 

The  charter  party  usually  excepts  Sundays  and  holidays  from 
the  laydays  allowed  for  loading,  but,  after  the  expiration  of  the 
loading  period  (i.e.,  the  laydays  and  the  Sundays  and  holidays 
occurring  among  them),  demurrage  begins  to  be  payable  to  the 
ship,  and  she  is  entitled  to  demurrage  for  Sundays  and  holidays 
as  well  as  for  secular  days.  This  is  because  the  work  of  loading 
in  port  does  not  usually  proceed  on  Sunday,  but  a  ship  at  sea 
continues  on  her  voyage  every  day,  so  that  every  day's  delay  in 
departure  causes  an  equal  delay  in  arrival. 

Charters  often  provide  for  "  despatch  money,"  which  is  a 
premium  or  allowance  to  the  charterer  for  speed  in  loading.  This 
is  computed  on  each  running  day  saved ;  that  is,  it  is  to  be  cred- 
ited to  the  charterer  for  every  day,  including  Sundays  and  holi- 
days, occurring  after  the  day  on  which  the  master  is  placed  in  a 
position  to  clear  the  vessel,  up  to  and  including  the  last  layday, 
i.  e.,  the  end  of  the  loading  period.  Despatch  is  not  allowed  unless 
bargained  for  in  the  charter. 

22.  Breach  of  Charter. —  If  the  shipowner  refuses  to  perform 
the  charter,  the  charterer  has  a  personal  action  for  damages  against 
him  but  no  maritime  lien  against  the  ship.  There  is  no  such  lien 
for  breach  of  a  purely  executory  contract,  that  is  to  say  a  contract 
no  part  of  which  has  been  performed.  So,  if  the  ship  is  ready 
but  the  charterer  refuses  to  perform,  the  remedy  is  personal  only 


CONTRACTS  107 

and  not  against  the  goods.  Each  must  endeavor  to  mitigate 
his  loss,  the  ship  by  seeking  other  employment,  the  charterer 
by  looking  for  another  ship.  But  after  performance  of  the 
contract  has  once  commenced,  there  are  reciprocal  liens  on  ship 
and  cargo  for  its  performance.  The  charterers  have  a  lien  on 
the  vessel  for  all  damages  caused  by  a  breach  of  the  charter,  the 
carrying  out  of  which  has  been  begun.  For  example,  if  the  voyage 
is  delayed  after  its  commencement  through  the  negligence  of  the 
owner,  or  if  the  master,  while  agent  of  the  owner,  violates  the 
terms  of  the  charter  party,  a  lien  arises  in  favor  of  the  charterer. 

In  regard  to  the  various  obligations  of  the  agreement,  breaches 
by  either  party  will  either  dissolve  their  relations  or  give  rise  to 
actions  for  damages.  If  nonperformance  goes  to  the  whole  root 
and  consideration  of  the  contract,  the  other  party  may  treat  it  as 
abrogated  and  be  relieved  from  further  obligation  on  his  part  in 
addition  to  his  own  claim  for  damages;  if  the  nonperformance  is 
not  so  vital,  but  may  be  amply  compensated  by  damages,  he  will 
not  be  so  relieved  but  must  resort  to  his  action. 

The  arbitration  clause  contained  in  a  time  charter  is  not  enforc- 
ible  in  the  United  States. 

23.  Dissolution  of  Charter. —  Like  all  other  contracts,  the 
charter  party  becomes  dissolved  by  performance  or  by  the  acts 
of  the  parties  amounting  to  a  cancellation  by  agreement  or  waiver 
of  performance.  It  may,  however,  be  dissolved  against  the  will 
of  the  parties  and  by  causes  extrinsic  to  them.  Thus,  although 
legal  when  made,  if  it  becomes  illegal  before  performance,  it  is 
as  wholly  void  as  if  it  were  illegal  at  the  outset.  A  state  of  war, 
for  example,  making  all  commercial  intercourse  with  the  enemy 
illegal,  would  annul  all  obligations  under  a  prior  charter  for  a 
voyage  to  an  enemy  port.  So  would  legislation  forbidding  the 
importation  of  the  cargo  in  question.  A  voyage  charter  may  be 
dissolved  by  an  accident  to  the  vessel  which  prevents  her  making 
the  voyage  at  the  time  contemplated.  For  example,  in  Jackson  v. 
Union  Marine  Insurance  Co.,  L.  R.  10.  C.  P.  125,  the  ship  was  to 
proceed  with  all  possible  despatch  (dangers  and  accidents  of  navi- 
gation excepted)  from  Liverpool  to  Newport,  and  there  to  load 
and  carry  to  San  Francisco  a  cargo  of  iron  rails.  She  left  Liv- 
erpool January  2,  and  on  the  following  day  ran  aground,  sustain- 
ing considerable  damage.  It  would  necessarily  have  been  many 
months  before  she  could  be  got  oflf  and  put  in  repair  to  enable  her 


io8  THE  LAW  OF  THE  SEA 

to  continue  the  voyage.  The  court  held  that  in  the  commercial 
sense  the  voyage  contemplated  by  the  charter  party  had  been 
brought  to  an  end,  and,  under  those  circumstances,  the  contract 
was  held  to  have  determined.  The  voyage,  if  resumed,  would 
have  been  a  different  voyage,  "  as  different,"  in  Baron  Bramwell's 
words,  "  as  though  it  had  been  described  and  intended  to  be  a 
spring  voyage,  while  the  other,  after  the  repair,  would  be  an  au- 
tumn voyage."  The  season  within  which  the  adventure  was  to 
be  carried  out  was  of  importance  to  both  parties,  and  it  was  thus 
easy  to  imply  a  condition  that,  if  the  voyage  became  impossible 
of  completion  within  that  season,  the  contract  would  be  at  an  end. 
The  exception  as  to  dangers  of  the  sea  and  accidents  of  navigation 
showed  that  the  parties  contemplated  providing  for  some  delay 
from  these  causes,  but  it  was  held  that  they  were  evidently  not 
contemplating  a  delay  so  great  that  the  spring  voyage  would  be- 
come altogether  impossible. 

The  particular  adventure  being  a  voyage  to  be  carried  out  within 
reasonable  limits  of  time  furnished  a  definite  standard  by  which  it 
would  be  determined  whether  the  delay  which  actually  occurred  was 
or  was  not  within  the  exception  clause.  There  was,  therefore,  no  in- 
consistency between  the  implied  condition  and  the  express  provisions 
of  the  contract. 

Termination  of  a  charter  by  frustration  of  adventure  is  not 
applicable  to  time  charters.  Thus  the  taking  of  the  ship  for  the 
use  of  the  government  does  not  dissolve  a  time  charter.  This 
was  held  by  the  House  of  Lords,  upon  a  very  full  consideration 
in  the  recent  cause  of  TampHn  Steamship  Co.  v.  Anglo-Mexican 
Products  Co.,  Ltd.,  2  A.  C.  397.  There  a  vessel  was  chartered 
for  five  years  for  a  fixed  sum  per  month  for  the  carriage  of  oil 
as  the  charterers  or  their  agents  should  direct.  The  charter  party 
contained  an  exception  of  arrests  and  restraint  of  princes,  and 
the  charterers  had  the  liberty  of  subletting  the  steamer  on  admir- 
alty or  other  service.  After  the  outbreak  of  the  war,  when  the 
charter  party  had  nearly  three  years  to  run,  the  steamer  was 
requisitioned  for  an  indefinite  period  by  the  admiraUy,  which 
made  extensive  alterations  and  used  her  as  a  transport.  The 
owners  contended  that  the  charter  party  had  been  determined  by 
the  requisition.  The  charterers,  who  were  willing  to  continue  to 
pay  the  charter  hire  (no  doubt  in  order  to  entitle  themselves  as 
temporary  owners  to  the  compensation  paid  by  the  government) 
contended  that  the  charter  party  had  not  been  annulled  and  this 


CONTRACTS  109 

contention  was  sustained  by  the  House,  which  held  that  the  in- 
terruption was  not  of  such  a  character  that  the  court  ought  to  im- 
ply a  condition  that  the  parties  should  be  excused  from  further  per- 
formance of  the  contract  and  that  the  requisition  did  not  determine 
or  even  suspend  the  charter.     Earl  Loreburn  said : 

The  violent  interruption  of  a  contract  may  always  damage  one  or 
both  the  contracting  parties.  Any  interruption  does  so.  Loss  may 
arise  to  some  one  whether  it  be  decided  that  these  people  are  or  that 
they  are  not  still  bound  by  the  charter  party.  But  the  test  for  an- 
swering the  questions  is  not  the  loss  that  either  may  sustain.  It  is 
this:  Ought  we  to  imply  a  condition  in  the  contract  that  an  interrup- 
tion such  as  this  was  to  excuse  the  parties  from  further  performance 
of  it?  I  think  not.  I  think  they  took  their  chances  of  lesser  inter- 
ruptions and  the  condition  I  should  imply  goes  no  further  than  that 
they  should  be  excused  if  substantially  the  whole  contract  became 
impossible  of  performance  or  in  other  words  impracticable  by  some 
cause  for  which  neither  was  responsible.  Accordingly  I  am  of  opin- 
ion that  this  charter  party  did  not  come  to  an  end  when  the  steamer 
was  requisitioned  and  that  the  requisition  did  not  suspend  it  or  affect 
the  rights  of  the  owners  or  charterers  under  it  and  that  the  appeal 
fails.i 

Where  the  charter  provides  for  the  return  of  the  vessel  at  the 
expiration  of  the  term  in  as  good  condition  as  when  taken,  fair 
wear  and  tear  from  reasonable  and  proper  use  only  excepted,  and 
requires  the  hirer  to  make  all  repairs  and  assume  liability  for  all 
loss  and  damage,  an  absolute  obligation  to  return  her  is  created 
and  her  total  loss  without  any  fault  on  his  part  will  not  exempt 
him  from  liability ;  he  must  return  the  ship  or  pay  her  value,  and, 
if  the  charter  party  contains  an  agreement  as  to  what  that  value 
is,  that  amount  will  be  decreed  by  the  court.  In  Sun  Printing  & 
C.  Association  v.  Moore,  183  U.  S.  642,  the  New  York  Sun  news- 
paper chartered  a  yacht  from  Moore  for  newsgathering  purposes 
in  Cuban  waters  during  the  Spanish  war.  The  charter  party 
provided  that  the  hirer  was  to  keep  "  said  yacht  in  repair  and  to 
pay  all  its  running  expenses  and  to  surrender  said  yacht  with  its 

1  It  may  be  inferred,  however,  that,  if  it  had  appeared  that  the  requi- 
sition necessarily  rendered  the  performance  of  the  entire  contract  impos- 
sible, the  charter  would  have  been  held  to  be  dissolved.  In  this  case,  it 
was  the  owner,  who  saw  a  chance  to  make  more  money,  who  wanted  the 
charter  annulled;  not  the  charterer  whose  adventure  was  being  frustrated 
in  a  manner  advantageous  to  him.  It  is  a  little  difficult  to  suppose  that 
the  court  would  have  required  the  charterers  to  go  on  paying  charter  hire, 
had  they  been  unwilling  to  do  so,  for  a  vessel  of  which  the  government 
had  deprived  them  of  the  use.  Still,  that  conclusion  is  deducible  from  the 
language  of  the  several  lords  who  wrote  opinions  in  the  case. 


no  THE  LAW  OF  THE  SEA 

gear,  furniture  and  tackle  at  the  expiration  of  this  contract  to 
the  owner  or  his  agent  ...  in  as  good  condition  as  at  the  start, 
fair  wear  and  tear  from  reasonable  and  proper  use  only  excepted. 
It  was  further  provided  that  "  for  the  purpose  of  this  charter  the 
value  of  the  yacht  shall  be  considered  and  taken  at  the  sum  of 
$75,000."  The  charter  party  was  accompanied  by  a  paper  in  the 
nature  of  a  surety  bond  given  by  the  Sun  to  secure  the  owner 
against  any  loss  or  damage  to  the  vessel  in  an  amount  not  exceed- 
ing $75,000.  The  yacht  was  wrecked  and  totally  lost.  Moore 
sued  for  $75,000  as  representing  the  agreed  value  of  the  yacht. 
The  Sun  contended  that  the  figure  represented  a  penalty,  enforce- 
able only  to  the  extent  of  actual  damage.  The  court  sustained 
a  recovery  of  the  full  amount  without  deducting  the  charter  hire. 
Justice  White  said : 

It  is  elementary  that,  generally  speaking,  the  hirer  in  a  simple  con- 
tract of  bailment  is  not  responsible  for  the  failure  to  return  the 
thing  hired,  when  it  has  been  lost  or  destroyed  without  his  fault.  Such 
is  the  universal  principle.  .  .  .  But  it  is  equally  true  that  where  by  a 
contract  of  bailment  the  hirer  has,  either  expressly  or  by  fair  impli- 
cation, assumed  the  absolute  obligation  in  return,  even  although  the 
thing  hired  has  been  lost  or  destroyed  without  his  fault,  the  contract 
embracing  such  liability  is  controlling  and  must  be  enforced  accord- 
ing to  its  terms.  .  .  . 

As  the  stipulation  for  value  referred  to  was  binding  upon  the  parties, 
the  trial  court  rightly  refused  to  consider  evidence  tending  to  show 
that  the  admitted  value  was  excessive  and  the  circuit  court  of  appeals 
properly  gave  effect  to  the  expressed  intention  of  the  parties. 

REFERENCES  FOR  READING 

Charter-Parties,  XVI  American  Law  Review,  6330. 

Charter-Parties  and  Bills  of  Lading,  T.  E.  Scrutton.    London,  1899; 

Clowes  and  Cons,  Ltd. 
Shipping  and  Admiralty,  Parsons,  274-337. 
Shipping  and  Admiralty,  Desty,  §§  217-286;  196-285. 
Crossman  v.  Burrill,  179  U.  S.  100. 
Moore  v.  Sun  Ass'n,  183  U.  S.  642. 
Boskenna  Bay,  36  Fed.  697. 
Majestic,  56  Fed.  244. 
Centurion,  57  Fed.  412. 

Shipping  and  Admiralty,  Parsons,  Vol.  I,  Chapter  VIII. 
Admiralty,  Hughes,  Chapters  VII,  VIII. 
Francis,  21  Fed.  715. 
Sprott,  70  Fed.  327. 


CONTRACTS  in 


Rosenthal,  57  Fed.  254. 

Ronalds,  109  Fed.  905. 

Burrill,  65  Fed.  104. 

Dene,  103  Fed.  983. 

Ely,  no  Fed.  563. 

Dixie,  46  Fed.  403. 

Mencke  v.  Sugar,  187  U.  S.  248. 

Charter-Parties  and  Ocean  Bills  of  Lading,  Poor. 


CHAPTER  VIII 

LIABILITIES  AND  LIMITATIONS 

1.  Liabilities  of  Ship. —  As  elsewhere  observed,  the  ship  re- 
sembles a  person  in  maritime  law  and  has  a  corresponding  liability. 
In  general,  she  is  responsible  for  every  benefit  received  and  every 
wrong  done  as  well  as  for  every  breach  of  governmental  regula- 
tions. Particular  instances  may  furnish  exceptions  to  this  general 
rule,  but  they  will  be  only  occasional  exceptions.  The  ship  should 
be  considered  as  a  juristic  person  and  her  liabilities  like  those  of 
an  ordinary  corporation,  quite  apart  from  those  of  the  natural 
persons  in  charge  of  her  operations  or  interested  in  her  owner- 
ship. The  liability  of  a  vessel  arising  out  of  contract  is  discussed 
elsewhere.  The  principle  governing  her  liability  for  torts  is  laid  \' 
down  in  the  brig  Malek  Adhel,  2  How.  (U.  S.)  210: 

The  ship  is  also  by  the  general  maritime  law  held  responsible  for 
the  torts  and  misconduct  of  the  master  and  crew  thereof,  whether 
arising  from  negligence  or  a  willful  disregard  of  duty;  as,  for  exam- 
ple, in  case  of  collision  and  other  wrongs  done  upon  the  high  seas  or 
elsewhere  within  the  admiralty  and  maritime  jurisdiction,  upon  the 
general  policy  of  that  law,  which  looks  to  the  instrument  itself,  used 
as  the  means  of  the  mischief,  as  the  best  and  surest  pledge  for  the 
compensation  and  indemnity  to  the  injured  party. 

The  liabiHty  ordinarily  extends  to  the  entire  ship  and  all  the  ap- 
purtenances.^ It  may  include  the  freight  money  and  collision 
damage ;  it  does  not  include  the  insurance ;  and  it  may  be  dimin- 
ished by  statutes  like  the  Harter  Act  or  by  special  agreements  in 
the  contract  of  carriage  or  similar  stipulations. 

2.  Liabilities  of  Owmer. —  While  it  has  been  said  that  the  lia- 
bility of  the  ship  and  of  the  owner  were  convertible  terms,  the 
statement  is  hardly  accurate  in  many  cases.     The  owner  may  have  ^ 
so  chartered  the  ship  as  to  release  him  from  personal  responsibility ; 

1  Liability  does  not  extend  to  parts  of  a  tow  having  no  motive  power 
of  their  own  when  attached  to  a  tug  whose  faulty  navigation  caused  a 
collision  even  though  the  damage  resulted  from  the  impact  of  the  tow  and 
the  tug  itself  did  not  physically  come  into  collision  at  all,  and  this  is  so 
notwithstanding  the  tug  belongs  to  the  same  owner.  Liverpool  &c.  Navi- 
gation Co.  V.  Brooklyn  Eastern  Dist.  Terminal,  U.  S.  Advance  Sheets, 
1919-20,  8s,  decided  by  the  Supreme  Court  December  8,  1919. 

112 


LIABILITIES  AND  LIMITATIONS  113 

he  may  be  wrongfully  deprived  of  her  possession ;  his  liability  may 
be  limited  by  law  or  special  agreement  to  her  value.  In  other 
words,  the  ship  is  frequently  liable  and  the  owner  is  not ;  and  the 
owner  can  usually  confine  his  liability  to  the  value  of  the  ship  and 
otherwise  go  free  from  her  obligations. 

3.  Liabilities  of  Charterer. —  Where  a  vessel  is  so  hired  that 
the  charterer  has  the  exclusive  possession,  control  and  manage- 
ment, appointing  the  master  and  hiring  the  crew,  there  is  said  to  be 
a  demise  of  the  ship  and  a  temporary  ownership  in  the  charterer,'^ 
He  then  becomes  responsible  for  her  obligations  as  if  he  were  the 
real  owner  and  has  similar  rights  of  limitation.     The  law  provides 
that  where  a  charterer  mans,  victuals  and  navigates  the  ship  at  his 
own  expense,  he  shall  be  considered  as  owner  within  the  provisions 
of  the  statutes  limiting  liability,  and  that  the  ship  shall  be  liable, 
when  so  chartered,  as  if  navigated  by  the  owner  (Rev.  St.  §4286). 
4.  Liabilities  of  Mortgagee. — These  depend  upon  his  posses- 
sion of  the  ship.     Where  he  takes  possession  and  operates  the 
ship  for  his  own  benefit,  he  assumes  all  the  responsibilities  of  , 
ownership  but  without  the  right  to  limit  his  liability  to  the  value 
of  his  interest  in  the  ship.     Thus  he  may  become  personally  liable 
for  wages,  supplies  and  repairs  as  well  as  for  damages  done  by 
negligence.     He  may,  by  special  arrangements,  confine  contract 
liabilities  to  the  ship  and,  being  lawfully  in  possession,  he  may 
create  maritime  liens  upon  her.     A  mortgagee  out  of  possession 
is  not  considered  as  the  owner  even  when  he  holds  the  record  title 
under  a  bill  of  sale  absolute  on  its  face.     He  may  still  show  that 
his  title  was  by  way  of  security  only  and  so  exempt  himself  from 
personal  liability  for  repairs  done  or  supplies  furnished  for  the 
contracts  or  negligence  of  the  mortgagor  or  other  person  having 
real  ownership  of  the  boat. 

5.  Liabilities  of  Underwriters. —  The  insurers  are  ordinarily 
strangers  to  the  ship  as  far  as  concerns  any  authority  to  instruct 
the  master  or  incur  obligations  on  her  account.  Only  in  case  oi  - 
an  abandonment  of  the  vessel  to  them,  when  the  loss  is  total  or 
constructively  total,  and  when  they  have  accepted  such  an  aban- 
donment, does  such  authority  arise.  An  abandonment  when  prop- 
erly made,  or  accepted,  vests  the  property  in  the  underwriter  and 
the  master  then  becomes  his  agent.  The  underwriter  is  then  the 
real  owner  and  has  all  an  owner's  liabiHties  and  limitations. 
There  is,  however,  a  very  large  intermediate  class  of  disasters 


114  THE  LAW  OF  THE  SEA 

where  the  underwriters  decline  an  abandonment  and  yet  take 
possession  of  the  ship  and  cargo  for  the  purpose  of  rescue  and 
repair.  Large  expenses  are  thus  created  for  which  the  damaged 
ship  and  cargo  may  be  adequate  security.  The  underwriters  are 
personally  liable,  in  the  absence  of  special  contract,  for  the  con- 
tracts of  their  agents,  although  the  nature  of  the  business  is  such 
that  it  is  often  a  practical  difficulty  to  ascertain  who  were  the  in- 
surers actually  making  the  engagements  and  what  was  the  real 
authority  of  those  assuming  to  represent  them.  These  questions 
are  usually  not  raised  during  the  exigencies  of  salvage  operations 
but  may  become  important  when  the  work  is  unsuccessful  and  the 
expenses  are  unpaid. 

6.  Theories  of  Limitation. —  The  general  maritime  law  has  al-^''^ 
ways  been  that  an  owner  was  not  personally  liable  for  the  obliga- 
tions of  his  ship  as  distinguished  from  his  own  agreements  or 
delinquencies.     It    regards   the   ship   as   a    distinct   individuality 
similar  to  a  corporation.     The  common  law,  on  the  contrary,  con-/^ 
siders  the  ship  like  any  other  kind  of  personal  property  and  holds 
the    owner    correspondingly   liable   because   his    agents    were   in 
charge  and  he  is  liable  for  whatsover  they  do  within  the  scope  of 
their  agency.     The  maritime  law  retains  an  earlier  notion  of  the 
common  law,  that  it  is  against  all  reason  to  put  blame  or  fault     ^ 
upon  a  man  for  the  negligence  of  others  and  declines  to  hold  him 
personally  for  what  he  cannot  personally  control.     It  also  rec- 
ognizes the  fact  that  men  of  means  will  not  invest  in  ships  unless  / 
they  can  be  protected  against  the  unlimited  liability  of  the  common 
law.     It  holds  that  such  a  liability  is  inherently  unjust  when  ap- 
plied to  the  shipowner  and  it  also  accepts  the  situation  in  which 
the  capitalist  declines  to  invest  in  shipping  unless  that  injustice 
is  averted.     Hence  came  the  rule  that  the  owner  is  not  liable  on  /^ 
account  of  the  ship  beyond  the  value  of  his  interest  therein  and 
her  freight  pending  and  the  corollary  that  he  might  absolve  him- 
self  from  all  liability  by  abandoning  the  ship  to  her  creditors. 
The  theory  is  (at  least  as  applied  to  torts)  that: 

If  you  surrender  the  offending  vessel  you  are  free,  just  as  it  was 
said  by  a  judge  in  the  time  of  Edward  III,  "  If  my  dog  kills  your 
sheep  and  I  freshly  after  the  fact  tender  you  the  dog  you  are  without 
recourse  to  me."  ^ 

-  Justice  Holmes  in  Liverpool,  etc..  Navigation  Co.  v.  Brooklyn  Eastern 
Dist.  Terminal    (supra). 


LIABILITIES  AND  LIMITATIONS  115 

This  rule  is  in  abrupt  conflict  with  the  theories  of  the  common  law 
and,  while  it  has  been  expressed  in  statutory  form  in  most  mari- 
time countries,  the  courts  have  been  so  far  influenced  by  common 
law  doctrines  in  its  application  that  it  does  not  prevail  in  its  orig- 
inal integrity  either  in  this  country  or  in  England.  Congress  has 
endeavored  to  restore  it  in  the  United  States  but  the  courts,  so 
far,  have  declined  to  follow  the  plain  language  of  the  statute. 

7.  Contract  Limitations. —  To  a  considerable  extent  there  may 
be  an  efifective  limitation  of  liability  by  special  contract  between 
the  parties.  The  courts  hold,  generally,  that  limitations  of  liabil- 
ity in  a  contract  must  be  reasonable  if  they  are  to  be  valid  and  they 
regard  clauses  which  exempt  the  shipowner  from  liability  for  his 
own  or  his  servants'  negligence  as  unreasonable  and  also  as  con- 
trary to  public  policy.  At  the  same  time,  when  the  ship  is  not 
professing  to  be  a  common  carrier  and  the  contract  is  plain  and 
on  adequate  compensation,  such  clauses  may  be,  and  are,  enforced. 
Their  efficiency  will  depend  largely  upon  the  contract  itself  and 
there  is  no  hard  and  fast  rule  which  prevents  the  private  carrier 
from  obtaining  such  limitations  as  he  requires  if  the  other  party 
will  agree  thereto. 

An  illustration  is  found  in  the  case  of  the  Royal  Sceptre,  187 
Fed.  224,  where  the  charter  provided : 

The  ship  is  to  be  in  no  way  liable  for  any  consequences  of  .  .  . 
perils  of  the  sea,  .  .  .  collisions,  stranding,  or  other  accidents  or 
errors  of  navigation  even  when  occasioned  by  the  negligence,  de- 
fault, or  error  in  judgment  of  the  pilot,  master,  mariners,  or  other 
servants  of  the  shipowners. 

Judge  Hough  said: 

The  quoted  charter  provision  delimits  the  obligations  of  the  ship, 
in  so  far  as  it  goes,  when  reasonably  interpreted.  If  therefore  the 
proximate  cause  of  this  loss  be  a  peril  of  the  sea  (or  river),  a 
stranding,  an  error  of  the  pilot  or  negligence  of  the  master,  it  may 
be  assumed  that  libellant  cannot  recover;  for,  without  any  written 
limitation  of  liability,  all  that  the  bailor-libellant  could  require  or  ex- 
pect from  the  bailee-claimant  was  the  use  of  ordinary  care  and  skill 
and  that  expectation  has  been  (in  part)  bargained  away  for  a  con- 
sideration presumably  expressed  in  the  rate  of  charter  hire. 

8.  The  Federal  Statutes.— The  original  law  was  enacted  in 
1851  (Rev.  St.  §§  4284-4286;  Comp.  St.  1916,  8020-8027); 
that  provided  an  absolute  protection  against  loss  by  fire  unless 


ii6  THE  LAW  OF  THE  SEA 

caused  by  the  design  or  neglect  of  the  owner,  and  in  case  of  prac-,v^ 
tically  all  losses  which  might  occur  without  the  "  privity  or  knowl- 
edge "  of  the  owner,  his  liability  was  limited  to  the  value  of  his 
interest  in  the  ship  and  freight  pending ;  provision  was  made  for 
a  general  average  of  creditors  and  transfer  to  a  trustee;  in  1872 
the  Supreme  Court  promulgated  rules  of  practice  under  which  its 
benefits  might  be  more  efficiently  applied  by  the  admiralty  courts. 
It  was  held  that  these  statutes  were  enacted  to  restore  the  old 
doctrine  of  the  maritime  law,  to  encourage  shipbuilding  and  the 
employment  of  ships  in  commerce,  and  for  the  pubUc  benefit. 
Hence  they  must  be  liberally  construed  in  favor  of  shipowners. 
In  a  series  of  great  decisions,  commencing  about  1870,  the  Su- 
preme Court  held  the  law  constitutional ;  that  foreign  shipowners 
were  entitled  to  its  benefits ;  that  the  valuation  of  the  owner's 
interest  might  be  made  as  of  the  termination  of  the  voyage  or 

mmediately  after  the  disaster  so  that  if  the  loss  is  total  the  liabil- 

ty  is  practically  nil ;  that  insurance  was  no  part  of  the  owner's 
interest  in  the  ship  or  freight  and  need  not  be  surrendered;  and 

hat  the  protection  of  the  act  extended  to  underwriters  to  whom 

he  ship  had  been  abandoned. 

The  original  law  had  been  passed  with  much  difficulty  and  its 
language,  as  the  result  of  compromise  and  concession,  was  sub- 
jected to  much  criticism  as  uncertain  and  ambiguous.  The  ship- 
ping interests  of  the  country  continued  to  decline  and  among  the 
reasons  assigned  were  the  responsibility  and  liabilities  left  open 
or  undefined  by  the  law.  About  1880,  in  connection  with  a  vig- 
orous attempt  to  revive  the  merchant  marine,  the  entire  subject 
received  full  consideration  by  Congress.  The  Act  of  June  26, 
1884,  was  subsequently  passed,  and,  expressly  repealing  all 
laws  in  conflict  therewith,  declared  in  a  few  words  that  '*  the 
individual  liability  of  a  shipowner  shall  be  limited  to  the  propor- 
tion of  any  and  all  debts  and  liabilities  that  his  individual  share 
of  the  vessel  bears  to  the  whole,  and  the  aggregate  liabilities  of  all 
the  owners  of  a  vessel  on  account  of  the  same  shall  not  extend 
the  value  of  such  vessel  and  freight  pending."  An  amendment 
seeking  to  insert  the  condition  that  such  debts  must  have  been 
incurred  without  the  owner's  privity  or  knowledge  was  deliber- 
ately rejected.  The  courts,  however,  have  declined  to  enforce  the 
law  according  to  its  terms  and  held  that  Congress  really  intended 
to  insert  the  condition  as  to  privity  or  knowledge  in  spite  of  the 


LIABILITIES  AND  LIMITATIONS  117 

omission  of  the  words  and  the  rejection  of  the  amendment  which 
sought  to  insert  them.  The  result  is  that  the  owner  is  still  liahle 
without  limit  for  all  obligations  which  arise  out  of  matters  of 
contract,  according  to  the  rules  of  the  common  law  and  in  many 
instances  of  negligence  on  the  part  of  his  employees  the  same 
result  seems  to  follow.  His  liability  can  not  be  limited  where 
"  privity  or  knowledge "  is  imputable  to  him  and  no  accurate 
definition  of  these  terms  is  yet  available. 

Under  the  present  law,  the  voyage  is  the  unit  in  respect  to  whiclv 
limitation  may  be  granted.  Probably  the  shipowner  may  claim  the 
benefit  of  the  law  at  any  time  before  he  pays  a  final  judgment 
in  favor  of  the  damage  creditors,  but  he  must  account  for  the  value 
of  the  ship  as  it  was  at  the  termination  of  the  voyage  on  which 
the  liability  was  created.  The  courts  will  not  permit  him  to  con- 
tinuously operate  the  ship  at  the  expense  of  her  creditors  and  then 
finally  abandon  her  to  them  loaded  with  the  liens  of  many  voyages. 
The  rule  is  only  a  practical  one  and  in  special  cases  may  work  in- 
justice to  shipowners,  as  where  ships  make  a  continuous  number 
of  short  trips  between  contiguous  points.  Part-owners  are  only 
liable  according  to  the  proportion  of  their  shares,  and  the  per- 
sonal fault  or  privity  of  one  does  not  necessarily  implicate  the 
others.  It  is  not  necessary  that  they  should  join  in  the  same  pro- 
ceeding. The  exemption  is  several  and  may  be  claimed  by  each 
without  reference  to  the  others. 

g.  "  Privity  or  Knowledge." —  Limitation  of  liability  can  not 
be  had  against  any  loss  or  obligation  unless  incurred  without  the 
privity  or  knowledge  of  the  shipowner.  These  words,  by  judi- 
cial construction,  still  remain  as  a  condition  or  qualification  of  the 
law  and  it  is  unfortunate  that  no  plain  definition  of  their  meaning 
has  been  yet  supplied.  The  words  have  been  discussed  in  many 
cases  and  there  are  many  decisions  in  particular  instances  grant- 
ing or  denying  the  benefit  of  the  law,  but  the  expression  is  still 
undefined  and  perhaps  is  incapable  of  accurate  legal  definition. 
Some  judges  have  held  that  "  privity  or  knowledge  "  means  the 
shipowner's  own  willful  or  negligent  acts  as  distinguished  from 
those  of  his  agents  or  employees.  This  gives  the  broad  and  lib- 
eral construction  of  the  law  which  the  Supreme  Court  directed  in 
its  earlier  decisions  on  the  subject.  On  the  other  hand,  judges 
of  equal  learning  have  been  inclined  to  treat  the  matter  by  the 
standards  of  the  common  law  and  held  that  the  acts  or  faults  of 


ii8  THE  LAW  OF  THE  SEA 

agents  or  servants  are  those  of  the  principal  and  that  he  must 
be  as  personally  liable  as  if  he  had  done  them  himself.  These 
would  limit  the  protection  of  the  law  to  the  acts  of  the  master  of 
the  ship  when  beyond  control  of  the  owner  and  give  it  a  close 
construction  against  the  shipowner.  This  has  been  the  tendency 
of  the  later  decisions  of  the  Courts  of  Appeals  and  the  Supreme 
Court  has  so  far  acquiesced  in  them.  There  has  also  been  a  devel- 
opment of  a  doctrine  to  the  effect  that  there  can  be  no  limitation 
against  the  enforcement  of  the  shipowner's  personal  contracts, 
and  engagements  made  by  various  employees  and  managing  owners 
have  been  held  to  be  within  this  class.  This  rule  depends  on 
the  theory  of  privity  or  knowledge,  as,  of  course,  there  can  be 
no  such  thing  as  a  contract  relation  without  privity  or  knowledge 
of  its  subject-matter.  Thus  in  the  recent  case  of  Luckenbach  v. 
McCahan  Sugar  Ref.  Co.,  248  U.  S,  139,  decided  December  9, 
1918: 

But  the  liability  of  the  owners  sought  to  be  enforced  here  is  one 
resting  upon  their  personal  contract;  and  to  such  liabilities  the  limi- 
tation acts  do  not  apply. 

Similarly  in  another  recent  case,  Pendleton  v.  Benner  Line,  246 
U.  S.  353 : 

The  contract  was  between  human  beings,  and  the  petitioner,  by  his 
own  act,  knowingly  made  himself  a  party  to  an  express  undertaking 
for  the  seaworthiness  of  the  ship.  That  the  statute  does  not  limit 
liability  for  the  personal  acts  of  the  owners,  done  with  knowledge,  is 
established  by  Richardson  v.  Harmon,  222  U.  S.  96.  It  was  said  in 
that  case,  p.  106,  that  §  18  leaves  the  owner  "  liable  for  his  own  fault, 
neglect,  and  contracts." 

It  is  said  that  the  owners  did  their  best  to  make  the  vessel  sea- 
worthy, and  that  if  it  was  not  so  the  failure  was  wholly  without  the 
privity  or  knowledge  of  the  petitioner.  But  that  is  not  the  material 
question  in  the  cas€  of  a  warranty.  Unless  the  petitioner  can  be  dis- 
charged from  his  contract  altogether  he  must  answer  for  the  breach, 
whether  he  was  to  blame  for  it  or  not. 

In  the  case  of  corporate  shipowners  it  is  said  that  the  privity 
or  knowledge  must  be  that  of  the  managing  officers,  but  there  is 
no  definition  of  who  the  managing  officers  are  and  the  term  is 
not  capable  of  accurate  definition.  The  law  of  limitation  of 
liability  of  shipowners  in  the  United  States  is  not  now  plain  or 
simple  nor  is  it  in  harmony  with  the  general  maritime  law  or 


LIABILITIES  AND  LIMITATIONS  119 

that  of  other  commercial  countries.  Where  the  owner  can  prove 
that  the  loss  occurred  without  his  privity  or  knowledge  he  will 
obtain  protection,  but  just  what  facts  or  ignorance  of  facts  he 
must  prove  to  reach  this  result  can  not  be  stated  at  the  present 
time. 

10.  Harter  Act. —  This  law  was  enacted  by  Congress  in  1893, 
and  corresponds  to  a  similar  English  statute  of  about  the  same 
date.  It  may  be  found  in  7  Comp.  St.,  1916,  §§  8029-8035.  The 
text  of  the  act  follows : 

Chapter  105.  An  act  relating  to  navigation  of  vessels,  bills  of 
lading,  and  to  certain  obligations,  duties,  and  rights  in  connection  with 
the  carriage  of  property. 

Be  it  enacted  by  the  senate  and  house  of  representatives  of  the 
United  States  of  America  in  congress  assembled,  that  it  shall  not  be 
lawful  for  the  manager,  agent,  master  or  owner  of  any  vessel  trans- 
porting merchandise  or  property  from  or  between  ports  of  the  United 
States  and  foreign  ports  to  insert  in  any  bill  of  lading  or  shipping 
document  any  clause,  covenant  or  agreement  whereby  it,  he,  or  they 
shall  be  relieved  from  liability  for  loss  or  damage  arising  from 
negligence,  fault  or  failure  in  proper  loading,  stowage,  custody,  care, 
or  proper  delivery  of  any  and  all  lawful  merchandise  or  property 
committed  to  its  or  their  charge.  Any  and  all  words  and  clauses  of 
such  import  inserted  in  bills  of  lading  or  shipping  receipts  shall  be 
null  and  void  and  of  no  effect. 

Sec.  2.  That  it  shall  not  be  lawful  for  any  vessel  transporting 
merchandise  or  property  from  or  between  ports  of  the  United  States 
of  America  and  foreign  portsi,  her  owner,  master,  agent,  or  manager, 
to  insert  in  any  bill  of  lading  or  shipping  document  any  covenant  or 
agreement  whereby  the  obligation  of  the  owner  or  owners  of  said 
vessel  to  exercise  due  diligence,  properly  equip,  man,  provision,  and 
outfit  said  vessel,  and  to  make  said  vessel  seaworthy  and  capable  of 
performing  her  intended  voyage,  or  whereby  the  obligations  of  the 
master,  officers,  agents,  or  servants,  to  carefully  handle  and  stow  her 
cargo  and  to  care  for  and  properly  deliver  the  same,  shall  in  any  wise 
be  lessened,  weakened  or  avoided. 

Sec.  3.  That  if  the  owner  of  a  vessel  transporting  merchandise  or 
property  to  or  from  any  port  in  the  United  States  of  America  shall 
exercise  due  diligence  to  make  the  said  vessel  in  all  respects  sea- 
worthy and  properly  manned,  equipped  and  supplied,  neither  the 
vessel,  her  owners  or  managers,  agents  or  charterers,  shall  become  or 
be  held  responsible  for  damages  or  loss  resulting  from  faults  or 
errors  in  navigation  or  in  the  management  of  said  vessel,  nor  shall 
the  vessel,  her  owner  or  owners,  charterers,  agent,  or  master  be  held 
liable  for  losses  arising  from  dangers  of  the  sea  or  other  navigable 
waters,  acts  of  God,  or  public  enemies,  or  the  inherent  defect,  quality 
or  vice  of  the  thing  carried,  or  from  the  insufficiency  of  package,  or 


120  THE  LAW  OF  THE  SEA 

seizure  under  legal  process,  or  for  loss  resulting  from  any  act  or 
omission  of  the  shipper  or  owner  of  the  goods,  his  agent  or  repre- 
sentative, or  from  saving  or  attempting  to  save  life  or  property  at 
sea,  or  from  any  deviation  in  rendering  such  service. 

Sec.  4.  That  it  shall  be  the  duty  of  the  owner  or  owners  masters, 
or  agent  of  any  vessel  transporting  merchandise  or  property  from  or 
between  ports  of  the  United  States  and  foreign  ports,  to  issue  to 
shippers  of  any  lawful  merchandise  a  bill  of  lading  or  shipping  docu- 
ment, stating,  among  other  things,  the  marks  necessary  for  identifica- 
tion, number  of  packages  or  quantity,  stating  whether  it  be  carrier's 
or  shipper's  weight,  an  apparent  order  or  condition  of  such  merchan- 
dise or  property  delivered  to  and  received  by  the  owner,  master,  or 
agent  of  the  vessel  for  transportation,  and  such  document  shall  be 
prima  facie  evidence  of  the  receipt  of  the  merchandise  therein  de- 
scribed. 

Sec.  5.  That  for  a  violation  of  any  of  the  provisions  of  this  act 
the  agent,  owner,  or  master  of  the  vessel  guilty  of  such  violation,  and 
who  refuses  to  issue  on  demand  the  bill  of  lading  herein  provided  for, 
shall  be  liable  to  a  fine  not  exceeding  two  thousand  dollarsi  The 
amount  of  the  fine  and  costs  of  such  vialation  shall  be  a  lien  upon 
the  vessel  whose  agent,  owner,  or  master  is  guilty  of  such  violation, 
and  such  vessel  may  be  libeled  therefor,  in  any  district  court  of  the 
United  States  within  whose  jurisdiction  the  vessel  may  be  found. 
One-half  of  such  penalty  shall  go  to  the  party  injured  by  such  vio- 
lation and  the  remainder  to  the  government  of  the  United  States. 

Sec.  6.  That  this  act  shall  not  be  held  to  modify  or  repeal  sec- 
tions forty-two  hundred  and  eighty-one,  forty-two  hundred  and 
eighty-two,  and  forty-two  hundred  and  eighty-three  of  the  Revised 
Statutes  of  the  United  States,  or  any  other  statutes  defining  the  lia- 
bility of  vessels,  their  owners  or  representatives. 

Sec.  7.  Sections  one  and  four  of  this  act  shall  not  apply  to  the 
transportation  of  live  animals. 

Sec.  8.  This  act  shall  take  effect  from  and  after  the  first  day  of 
July,  eighteen  hundred  and  ninety-three.  Approved  February  13, 
1893. 

The  general  purpose  of  the  act  is  understood  to  have  been  to  J 
regulate  the  relations  between  ship  and  cargo,  so  as  to  provide  a  \ 
limitation  of  liability,  beyond  that  granted  by  the  earUer  statutes 
as  to  damages  in  general,  by  providing  that  if  the  owner  exercised 
due  diligence  to  make  his  ship  seaworthy  neither  he  nor  his  vessel 
should  be  liable  for  losses  resulting  from  fault  or  error  in  the  nav- 
igation or  management  of  the  vessel.  The  courts,  however,  have 
construed  the  statute  closely  against  the  shipowner  and  it  is  doubt- 
ful whether  it  has  not  rather  increased  his  original  liabilities  instead 
of  limiting  them.     He  is  still  held  to  his  warranty  of  absolute 


LIABILITIES  AND  LIMITATIONS  121 

seaworthiness  at  the  beginning  of  the  voyage;  stipulations  in  the 
bill  of  lading  are  prohibited  which  tend  to  relieve  him  from  liabil- 
ity for  loss  arising  from  negligence,  fault  or  failure  in  proper 
loading,  stowage,  care  or  proper  delivery  and  he  is  forbidden  to 
insert  any  clauses  lessening  his  common-law  obligations  as  a  car- 
rier. 

In  the  Carib  Prince,  170  U.  S.  655,  the  damage  to  cargo  was 
caused  by  latent  defects  in  a  rivet,  from  which  the  head  had  come 
off,  leaving  a  hole  through  which  water  entered  and  injured  libel- 
lant's  merchandise.  The  defect  was  due  to  too  much  hammering 
during  the  construction  of  the  hull,  causing  the  rivet  to  become 
brittle  and  weak.  By  reason  of  this  defect  the  vessel  was  unsea- 
worthy  at  the  time  the  bill  of  lading  was  issued,  although  the 
owner  did  not  know  it.  The  bill  of  lading  exempted  the  owner  of 
the  vessel  from  liability  on  account  of  "  latent  defects  in  the  hull." 
The  court  held  that  the  bill  of  lading  was  intended  to  confer  ex- 
emption only  to  latent  defects  arising  subsequent  to  sailing  and 
consequently  that  there  was  no  contractual  limitation  of  liability, 
and  with  reference  to  the  exemption  from  liability  claimed  under 
the  Harter  Act,  said: 

Because  the  owner  may,  when  he  has  used  due  diligence  to  furnish 
a  seaworthy  ship,  contract  against  the  obligation  of  seaworthiness,  it 
does  not  at  all  follow  that  when  he  has  made  no  contract  to  so  exempt 
himself  he  nevertheless  is  relieved  from  furnishing  a  seaworthy  ship, 
and  is  subjected  only  to  the  duty  of  using  due  diligence.  To  make  it 
unlawful  to  insert  in  a  contract  a  provision  exempting  from  sea- 
worthiness where  due  diligence  has  not  been  used,  cannot  by  any 
sound  rule  of  construction  be  treated  as  implying  that  where  due  dili- 
gence has  been  used,  and  there  is  no  contract  exempting  the  owner, 
his  obligation  to  furnish  a  seaworthy  vessel  has  ceased  to  exist.  The 
fallacy  of  the  construction  relied  upon  consists  in  assuming  that  be- 
cause the  statute  has  forbidden  the  shipowner  from  contracting 
against  the  duty  to  furnish  a  seaworthy  ship  unless  he  has  been  dili- 
gent, that  thereby  the  statute  has  declared  that  without  contract  no 
obligation  to  furnish  seaworthy  ship  obtains  in  the  event  due  dili- 
gence has  been  used. 

The  exemption  of  the  owners  or  charterers  from  loss  resulting 
from  "  faults  or  errors  in  navigation  or  in  the  management  of  the 
vessel,"  and  for  certain  other  designated  causes,  in  no  way  implies 
that  because  the  owner  is  thus  exempted  when  he  has  been  duly  dili- 
gent that  thereby  the  law  has  also  relieved  him  from  the  duty  of 
furnishing  a  seaworthy  vessel.     The  immunity  from  risks  of  a  de- 


122  THE  LAW  OF  THE  SEA 

scribed  character,  where  due  diligence  has  been  used,  cannot  be  so 
extended  as  to  cause  the  statute  to  say  that  the  owner  when  he  has 
been  duly  diligent  is  not  only  exempted  in  accordance  with  the  tenor 
of  the  statute  from  the  limited  and  designated  risks  which  are  named 
therein,  but  is  also  relieved  as  respects  every  claim  of  every  other 
description  from  the  duty  of  furnishing  a  seaworthy  ship.      /  / 

/  f 
In  the  Wildcroft,  201  U.  S.  378,  a  cargo  of  sugar  was  injured 

by  an  opening  of  a  valve  in  the  ship's  side  in  such  a  manner  that 

water  got  into  the  cargo.     The  vessel  was  in  all  respects  seaworthy 

at  the  beginning  of  the  voyage,  and  the  court  held  that  having 

discharged  the  duty  of  providing  a  seaworthy  ship  the  vessel  was 

relieved  from  liability  arising  out  of  an  unseaworthy  condition, 

which  devolved  after  the  beginning  of  the  voyage  and  'without 

the  fault  of  the  owners.     It  was  emphasized,  however,  fojlowing^ 

the  case  of  the  South wark,  191  U.  S.  i,  that  the  burden  is  upon 

the  owner  of  a  vessel  \ 

to  show  by  reasonable  and  proper  tests  that  the  vessel  was  seaworthy 
and  in  a  fit  condition  to  receive  and  transport  the  cargo  undertaken  to 
be  carried  and  that  if,  by  failure  to  adopt  such  tests  and  furnish  the 
required  proofs,  the  question  of  the  ship's  seaworthiness  was  left  in 
doubt,  that  doubt  must  be  resolved  in  favor  of  the  shipper,  because 
the  vessel  owner  had  not  sustained  the  burden  cast  upon  him  by  the 
law  to  establish  that  he  had  used  due  diligence  to  furnish  a  seaworthy 
vessel. 

As  it  emerges  from  the  interpretation  of  the  courts,  the  effect 
of  the  Harter  Act  seems  to  amount  to  this : 
The  act  says  to  the  shipowner : 

1.  You  may  make  a  valid  bargain  by  which  you  will  be  exempted 
from  liability,  if  you  use  due  diligence  to  make  the  ship  sea- 
worthy at  the  beginning  of  the  voyage,  and  some  defect  develops 
which  eluded  your  diligence.  Unless  you  make  such  a  bargain, 
your  obligation  to  provide  a  ship  which  is  seaworthy  at  the  com- 
mencement of  the  voyage  is  absolute,  and,  in  no  event,  can  you 
bargain  to  relieve  yourself  from  using  due  diligence. 

2.  You  cannot  bargain  away  your  duty  and  obligation  to  use 
due  diligence  to  see  that  your  vessel  is  maintained  in  seaworthy 
condition  during  the  voyage,  but  you  may,  if  you  like,  bargain  that 
if  you  use  due  diligence  and  your  ship  nevertheless  become  unsea- 
worthy, you  shall  be  relieved  from  responsibility  for  damage  to 
cargo  on  that  account, 

3.  If  you  use  due  diligence  to  employ  a  competent  master  and 


LIABILITIES  AND  LIMITATIONS  123 

criew  and  their  skill  in  navigation  fails  or  the  ship  encounters 
perils  of  the  sea  and  accident  happens  to  the  cargo  you  are  not 
responsible  for  the  damage.  Your  exemption  from  responsibility 
in  this  case  is  given  by  the  statute  and  you  do  not  need  to  bargain 
for  it. 

4.  Your  exemption  from  liability  does  not  extend  to  damage 
due  to  improper  loading  and  stowage. 

II.  Insurance. —  Where  the  shipowner  is  entitled  to  the  bene- 
fits of  the  Limited  Liability  Law,  his  liability  is  terminated  by  a 
surrender  or  abandonment  of  the  ship  and  her  pending  freight. 
He  may  retain  the  insurance  and  her  creditors  can  not  claim  it. 
He  is  not  obliged  to  account  for  the  insurance  money  which  he 
may  have  collected  for  the  loss  or  damage  to  his  vessel.     In  this 
respect  the  law  of  the  United  States  is  more  liberal  to  the  ship- 
owner than  that  of  many  other  countries.     The  question  was  de- 
cided in  the  cases  of  the  City  of  Norwich,  118  U.  S.  468,  and  the 
Scotland,  in  the  same  volume  at  page  507.     The  latter  will  illus- 
trate the  rule ;  the  Scotland  and  the  Dyer  were  in  collision  and 
both  sunk ;  the  lower  court  held  the  Scotland  at  fault  and  awarded 
the  owners  of  the  Dyer  upwards  of  $250,000,  as  damages.     The 
value  of  the  Scotland  before  the  collision  was  about  $500,000,  and 
her  owners   had    collected   insurance    on   her   to   the    amount   of 
$299,867.42.     The  value  of  her  wreckage  was  $4,927.85.     The 
Supreme  Court  held  that  her  owners'  liability  was  limited  to  this 
last  amount  and  that  the  owners  of  the  Dyer  could  not  claim  any 
part  of  the  insurance. 

12.  Single  Ship  Companies. —  This  is  a  form  of  organization 
w^hich  has  the  advantages  of  the  general  law  of  corporations  in 
limiting  the  liability  of  shareholders  to  the  amount  of  their  stock. 
If  such  a  corporation  has  all  its  capital  invested  in  a  single  ship, 
its  liability  is,  of  course,  limited  to  the  amount  of  the  investment 
and  if  the  shares  have  been  paid  in  full  there  can  be  no  further 
calls  upon  the  shareholders.  When  the  ship  is  lost,  all  liabilities 
are  lost  with  her  except  such  as  the  shareholders  may  have  person- 
ally guaranteed  or  assumed.  The  corporation  which  owns  several 
ships  will  obviously  not  have  the  same  degree  of  limitation. 
Hence  the  popularity  among  investors,  particularly  in  England, 
of  the  single  ship  company.  As  far  as  the  corporate  aflfairs  are 
concerned  the  laws  of  the  State  in  which  it  is  incorporated  must 
be  observed.     In  the  maritime  law,  its  status  is  that  of  an  indi- 


124  THE  LAW  OF  THE  SEA 

vidual  shipowner.  The  privity  or  knowledge  of  its  managing 
officers  may  preclude  it  from  the  protection  of  the  admiralty  law 
of  limited  liability;  if  so,  it  cannot  retain  the  insurance  or  any 
other  part  of  its  capital  against  its  creditors,  but,  when  the  capital 
is  lost  or  exhausted,  the  stockholders  who  have  paid  in  full  for 
their  shares  will  have  no  further  responsibility, 

REFERENCES  FOR  GENERAL  READING 

Admiralty  (1910),  Benedict,  Chapter  XXXV. 
Carriers,  Wheeler,  Chapters  I-III. 
Admiralty,  Hughes,  Chapters  VIH  and  XVL 
Collisions  at  Sea,  Marsden  (1904),  Chapter  VH. 
Limitation  of  Liability,  Van  Santvoord,  1887. 
Rebecca- Ware,  (Fed.  Cas.  No.  11,629). 
Trans.  Co.  v.  Wright,  13  Wall.  104. 
Benefactor,   103  U.  S.  247. 
Scotland,  105  U.  S.  24. 
City  of  Norwich,  118  U.  S.  468. 
O'Brien  v.  Miller,  168  U.  S.  287. 
La  Bourgogne,  210  U.  S.  95. 
Richardson  v.  Harmon,  222  U.  S.  96. 
Pendleton  v.  Benner  Line,  246  U.  S.  353. 


CHAPTER  IX 
MARITIME  LIENS 

I.  How  Created. —  In  general  and  within  the  limits  hereinafter 
mentioned,  every  service  rendered  to  a  ship  and  every  injury  done 
by  a  ship,  creates  a  maritime  lien  upon  her  for  the  benefit  of  the 
individual  who  did  the  work  or  suffered  the  wrong. 

Those  who  furnish  supplies  or  fuel  or  provisions,  or  make  re- 
pairs, or  render  services,  as  well  as  the  members  of  the  crew  and 
officers  (except  the  master)  acquire  such  liens  for  the  collection  of 
the  amounts  due  them.  A  like  right  or  privilege  accrues  for  the 
damage  done  through  negligence  on  the  part  of  the  ship  resulting 
in  damage  to  persons  or  property,  as  by  collision  or  injury  to 
cargo.  So  these  liens  are  divided  into  two  classes,  those  e.v  con- 
tractu (arising  out  of  agreements,  express  or  implied)  and  those 
ex  delicto  (arising  out  of  wrongs  or  torts). 

The  authority  of  the  master  to  obligate  the  ship  so  that  a  lien 
arises  has  been  discussed  under  the  title  "  Master." 

The  managing  owner,  ship's  husband,  master  or  any  person  to 
whom  the  management  of  the  vessel  at  port  of  supply  is  entrusted 
may  by  ordering  supplies,  repairs,  render  the  vessel  liable  to  a 
maritime  lien.  If  the  master  be  drunk  or  disabled  and  an- 
other person  is  discharging  his  duties  and  is  in  effect  for  the 
time  being  master  of  the  ship,  such  person  may  create  a  valid 
lien.  Thus  it  has  been  held  that  the  vessel  is  bound  for 
supplies  ordered  by  the  mate  acting  during  the  illness  of  the  mas- 
ter. The  vessel  is  also  bound  for  supplies  furnished  on  the  order 
of  any  member  of  the  ship's  company  and  with  the  master's 
knowledge  and  acquiescence.  It  is  customary  in  the  administra- 
tion of  a  large  modern  ship  for  the  head  of  each  department,  e.  g., 
the  steward,  chief  engineer,  to  order  supplies  and  for  these  the 
vessel  is  responsible,  but  only  on  the  theory  that  the  purchases 
are  made  with  the  master's  authority,  and  if  the  person  contract- 
ing the  obligation  has  acted  in  excess  of  the  powers  delegated  to 
him  by  the  master,  the  ship  will  not  be  bound.  It  is  incumbent 
on  the  person  furnishing  goods  to  a  vassel  to  inquire  into  the  au- 

125 


126  THE  LAW  OF  THE  SEA 

thority  of  the  individual  ordering  the  same.  Moreover,  if  the 
goods  ordered  are  greatly  in  excess  of  the  vessel's  needs,  it  is 
incumbent  upon  the  supplier  to  know  that  fact  and  if  the  goods 
ordered,  even  by  the  master  personally,  are  greatly  in  excess  of 
the  vessel's  needs  the  ship  will  not  be  bound. 

A  maritime  lien  attaches  to  the  offending  ship  only,  and  not  to 
her  cargo  (except  for  unpaid  freight)  and  this  is  true  even  though 
the  cargo  belonged  to  the  owner  of  the  offending  ship.  As  was 
said  by  Mr.  Justice  Brown  in  the  case  of  the  Bristol,  29  Fed.  867  : 

The  cargo,  except  for  the  collection  of  the  freight  due,  cannot  be 
held  for  the  faults  of  the  ship.  There  being  no  lien  beyond  freight 
due,  no  proceeding  in  rem  lies  against  the  cargo  for  damages  by  col- 
lision, if  the  freight  be  paid,  whether  the  cargo  belongs  to  the  owner 
of  the  offending  vessel  or  not;  and,  if  arrested,  the  cargo  must  be 
released  upon  the  payment  of  the  freight  due. 

A  maritime  lien,  being  essentially  -a  remedy  against  the  vessel, 
may  attach  even  in  a  case  in  which  the  owners  are  not  personally 
responsible ;  as  for  instance,  where  a  state  pilot,  in  charge  of  a 
ship  under  a  state  statute  which  renders  his  employment  compul- 
sory, negligently  brought  the  ship  into  collision,  she  was  subjected 
to  a  lien  for  the  damage  done,  although  the  pilot  was  in  no  sense 
the  agent  of  the  owners,  and  no  personal  liability  rested  upon  them. 
The  China,  7  Wall.  53. 

The  lien  attaches  only  by  virtue  of  contracts  or  torts  which  are 
wholly  maritime  in  their  nature.  It  is  frequently  difficult  to  de- 
termine the  nature  of  a  contract  or  tort.  Thus  persons  digging 
ice  and  snow  from  around  a  vessel  on  a  beach,  and  about  to  be 
launched  did  not  acquire  a  maritime  lien  because  the  service  was 
performed  on  shore.  Whereas  persons  who  floated  a  vessel  which 
had  been  carried  far  ashore  were  held  to  have  performed  a  mari- 
time service  and  to  be  entitled  to  a  Hen.  In  a  case  in  which  a  vessel 
communicated  fire  to  a  wharf  to  which  she  was  made  fast,  it  was 
held  that  the  tort  was  not  maritime,  whereas,  had  she  been  in  the 
stream  and  had  communicated  fire  to  another  vessel  in  the  stream, 
the  tort  would  have  been  maritime  and  would  have  given  rise  to 
a  maritime  lien  (Hough  v.  Trans.  Co.,  3  Wall.  20).  Conversely  a 
tort  having  its  inception  on  land  and  completed  on  shipboard  will 
give  rise  to  a  lien.  As  for  example  where  a  man  working  on  board 
ship  was  injured  by  a  piece  of  lumber  thrown  through  a  chute  by 
a  man  working  on  a  wharf.     (Herman  v.  Mill  Co.,  69  Fed.  646). 


MARITIME  LIENS  127 

A  Hen  arises  in  favor  of  the  owners  or  temporary  owners  of  a 
vessel  upon  cargo  actually  on  board  for  unpaid  freight  and  for 
demurrage.  This  is  the  only  case  in  which  possession  of  the  se- 
curity is  essential  to  the  existence  of  a  maritime  lien.  If  the 
cargo  is  removed  from  the  ship  the  maritime  lien  is  lost.  In  this 
class  of  cases  suit  to  enforce  the  lien  should  be  instituted  before 
the  cargo  is  discharged. 

2.  Essential  Value. —  The  essential  value  of  these  liens  lies  in 
the  right  they  give  to  have  the  ship  arrested  and  sold  by  a  court 
of  admiralty  for  their  satisfaction,  and  in  the  speed  and  security 
with  which  the  remedy  can  be  applied.  The  vessel  is  arrested  im- 
mediately upon  the  filing  of  the  libel,  before  the  liability  is  proven 
or  the  case  tried,  and  may  not  leave  port  without  giving  bond  to 
secure  the  claim  (see  Chapter  XVII,  Admiralty  Remedies). 

3.  Independent  of  Notice  or  Possesssion. — They  do  not  de- 
pend upon  notice  or  recording  o-r  possession  and  do  not  in  any 
way  resemble  a  mortgage.  They  are,  in  fact,  an  actual  property 
in  the  ship,  created  as  soon  as  the  service  is  rendered  or  the  wrong 
suffered  (Yankee  Blade,  19  How.  82). 

4.  Secret. —  As  these  liens  do  not  depend  upon  notice  or  rec- 
ord, they  are  essentially  secret  in  their  nature  and  even  purchase 
of  the  ship,  in  good  faith  and  for  value,  will  not  be  protected 
against  them  (The  Marjorie,  151  Fed.  183). 

5.  Diligence  Required. —  On  the  other  hand  the  law  requires 
the  lienor  to  be  diligent  in  enforcing,  his  lien  so  that  third  parties 
may  not  be  unduly  prejudiced  thereby.  If  he  is  not  diligent,  the 
court  will  hold  him  guilty  of  laches  and  the  lien  may  become  stale 
as  against  all  parties  other  than  the  owner. 

6.  Rules  of  Diligence. —  There  are  no  hard  and  fast  rules  de- 
fining diligence  or  the  limit  after  which  a  lien  becomes  stale. 
Under  the  general  maritime  law,  the  voyage  was  the  test ;  liens 
which  accrued  on  one  voyage  were  required  to  be  enforced  before 
another  voyage  was  made  or  they  became  stale  as  to  those  of  the 
latter.  In  deep-sea  navigation,  where  the  voyages  are  prolonged, 
this  rule  still  obtains.  On  the  Great  Lakes,  where  the  trips  or 
voyages  are  comparatively  short,  and  navigation  is  closed  by  the 
winters,  the  season  of  navigation  is  the  rule.  Liens  not  enforced 
during  the  season  or  the  following  winter  will  be  postponed 
to  those  of  the  later  season.  In  New  York  harbor,  the  local  con- 
ditions have  resulted  in  a  forty-day  rule ;  in  Virginia,  under  .^cme- 


128  THE  LAW  OF  THE  SEA 

what  different  conditions,  a  one-year  rule  has  appeared.  The 
safe  method  is  to  be  prompt  and  diligent  in  collecting  liens  against 
a  ship ;  delay  is  always  dangerous  and  there  may  be  no  other  finan- 
cial responsibility.  This  course  is  also  for  the  best  interests  of  the 
shipowner;  interest  and  costs  accumulate  rapidly  where  the  liens 
are  enforced  by  the  courts. 

In  the  case  of  the  Marjorie,  151  Fed.  183,  above  cited,  a  private 
yacht  was  libeled  in  Baltimore  on  account  of  coal  furnished  her  in 
Norfolk  nearly  a  year  previously.  She  spent  that  time  voyaging 
up  and  down  the  coast,  putting  in  at  various  ports  and  when 
libeled  had  been  laid  up  for  the  winter.  She  had  not  been  in 
Norfolk  subsequent  to  the  occasion  on  which  the  coal  was  fur- 
nished. About  six  months  after  the  coal  was  furnished  she  was 
sold  to  a  new  owner,  who,  finding  no  lien  on  record  against  her, 
paid  the  full  purchase  price.     The  Court  held : 

As  commercial  enterprise  would  be  vexatiously  incommoded  and 
the  free  circulation  and  disposal  of  vessels  prevented  if  such  liens, 
which  are  not  required  by  law  to  be  made  manifest  by  public  registra- 
tion, were  allowed  to  lie  dormant  for  an  indefinite  period,  the  courts 
have  uniformly  held,  where  the  rights  of  bona  Me  purchasers  will 
be  injuriously  affected  if  it  is  allowed  to  prevail,  that  the  lien  is  lost  if 
there  has  been  long  delay,  and  there  has  been  reasonable  opportunity 
to  enforce  it.  The  diligence  required  is  usually  measured  by  the 
opportunity  of  enforcement.  In  nearly  all  of  the  cases  where  the 
courts  have  held  the  lien  to  be  lost  and  where  there  has  been  change 
of  possession,  there  has  been  unreasonable  delay  on  the  part  of  the 
creditor  m  availing  himself  of  the  opportunities  of  enforcing  his  lien. 

In  the  case  under  consideration  the  libel  was  filed  within  less  than 
a  year.  The  yacht  had  been  sailing  from  port  to  port,  and  never 
came  within  the  jurisdiction  of  the  port  where  the  supplies  were  fur- 
nished. The  claim  was  a  small  one  and  hardly  justified  the  employ- 
ment of  a  detective  to  follow  her  wanderings.  The  lien  was  asserted 
as  soon  as  the  yacht  was  found.  .  .  .  The  law  is  well  settled  that 
liens  of  this  nature  must  be  sustained  if  there  has  been  reasonable 
diligence  in  asserting  them.  A  long  line  of  decisions  shows  that  a 
delay  of  a  year  in  circumstances  such  as  are  disclosed  by  the  testi- 
mony is  not  unreasonable,  and  to  lay  down  any  other  rule  would  tend 
to  unsettle  the  law  and  to  disturb  the  credit  which  in  the  interest  of 
commerce  must  be  extended  to  ships  for  supplies  when  away  from 
their  home  ports  to  enable  them  to  continue  their  voyages,  a  credit 
only  given  upon  the  faith  that  they  have  a  lien  upon  the  ship. 

7.  Recording  Liens  on  "  Preferred  Mortgage  "  Vessels. — 
The  Merchant  Marine  Act  of  1920  (Sec.  30,  Subsection  G.     See 


MARITIME  LIENS  129 

Appendix),  provides  that  any  one  claiming  a  lien  on  an  American 
ship  which  is  subject  to  a  *'  preferred  mortgage  "  as  defined  in 
that  Act  (see  Chapter  X,  infra)  may  record  a  notice  of  his  lien 
with  the  Collector  of  Customs  at  the  port  of  documentation,  and 
upon  the  discharge  of  the  indebtedness,  shall  file  a  certificate  to 
that  efi^ect.  A  lienor  who  has  recorded  his  lien  is  entitled  to  no- 
tice of  any  proceeding  for  the  foreclosure  of  a  preferred  mortgage. 
This  provision  is  intended  to  enable  the  lienor  to  come  in  and  pro- 
tect his  interest. 

8.  Limited  to  Movable  Things. —  These  liens  arise  only  upon 
movable  things  engaged  in  commerce  and  navigation.  They  can- 
not exist  in  anything  which  is  fixed  and  immovable  and  not  the 
subject  of  maritime  commerce  or  navigation.  Thus  they  will  sub- 
sist in  vessels,  rafts  and  cargoes  but  not  upon  a  bridge  or  a  ship 
totally  out  of  commission  (Rock  Island  Bridge,  6  Wall.  213; 
Pulaski,  ^^  Fed.  383).  The  lien  has  been  sustained  against  a 
dredge.     (Atlantic,  53  Fed.  607). 

9.  Priorities. —  Important  priorities  exist  among  maritime  liens 
and  these  are  adjusted  when  the  ship  is  sold  in  admiralty  to  satisfy 
her  debts.  The  purchaser  at  an  admiralty  sale,  as  elsewhere 
stated,  takes  the  ship  free  of  all  existing  liens ;  the  proceeds  of  the 
sale  are  distributed  among  the  lienors  according  to  their  priorities, 
after  deducting  costs  and  expenses. 

Liens  for  torts  take  precedence  over  all  prior  liens,  and  the 
later  lien  for  tort  will  be  preferred  to  an  earlier  if  there  has  been 
an  absence  of  diligence  in  enforcing  it.  The  John  G.  Stevens, 
170  U.  S.  113,  is  the  leading  case  on  the  priority  of  liens  against 
the  offending  vessel  for  torts  committed  by  her.  Mr.  Justice  Gray 
held : 

But  the  question  we  have  to  deal  with  is  whether  the  lien  for  dam- 
ages by  the  collision  is  to  be  preferred  to  the  lien  for  supplies  fur- 
nished before  the  collision. 

.  The  collision,  as  soon  as  it  takes  place,  creates,  as  security  for  the 
damages,  a  maritime  lien  or  privilege,  jus  in  re,  a  proprietary  interest 
in  the  offending  ship,  and  which,  when  enforced  by  admiralty  process 
in  rem,  relates  back  to  the  time  of  the  collision.  The  offending  ship 
is  considered  as  herself  the  wrongdoer,  and  is  herself  bound  to  make 
compensation  for  the  wrong  done.  The  owner  of  the  injured  vessel 
is  entitled  to  proceed  in  rem  against  the  offender,  without  regard  to 
the  question  who  may  be  her  owners,  or  to  the  division,  the  nature, 
or  the  extent  of  their  interests  in  her.    With  the  relations  of  the 


130  THE  LAW  OF  THE  SEA 

owners  of  those  interests,  as  among  themselves,  the  owner  of  the 
injured  vessel  has  no  concern.  All  the  interests  existing  at  the  time 
of  the  collision  in  the  offending  vessel,  whether  by  way  of  part  owner- 
ship, of  mortgage,  of  bottomry  bond,  or  of  other  maritime  liens  for 
repairs  or  supplies,  arising  out  of  contract  with  the  owners  or  agents 
of  the  vessel,  are  parts  of  the  vessel  herself,  and  as  such  are  bound 
by  and  responsible  for  her  wrongful  acts.  Any  one  who  had  fur- 
nished necessary  supplies  to  the  vessel  before  the  collision,  and  had 
thereby  acquired,  under  our  law,  a  maritime  lien  or  privilege  in  the 
vessel  herself,  was,  as  was  said  in  The  Bold  Buccleugh  [7  Moore 
P.  C.  267]  before  cited,  of  the  holder  of  an  earlier  bottomry  bond, 
under  the  law  of  England,  "  so  to  speak,  a  part  owner  in  interest  at 
the  date  of  the  collision  and  the  ship  in  which  he  and  others  were 
interested  was  liable  to  its  value  at  that  date  for  the  injury  done 
without  reference  to  his  claim  [7  Moore  P.  C.  285]." 

Liens  arising  out  of  matters  of  contract  v^^ill  be  paid  in  sub- 
stantially the  following  order: — 

Salvage. 

Sailors'  wages  and  wages  of  a  stevedore  when  employed  by 
master  or  owner. 

"  Preferred  mortgages  "  (see  below). 

Pilotage  and  Towage. 

Supplies  and  Repairs. 

Advances  of  Money. 

Insurance  premiums  (where  a  lien). 

Mortgages  not  preferred. 

It  may  be  regarded  as  the  grand  rule  of  priority  among  maritime 
liens,  that  they  are  to  be  paid  in  the  inverse  order  of  the  dates  at 
which  they  accrued.  Liens  arising  on  a  later  voyage  have  priority 
over  liens  of  an  earlier  voyage,  and  the  later  in  point  of  time 
which  have  been  for  the  preservation  or  improvement  of  the  vessel, 
are  to  be  paid  in  the  inverse  order  of  the  dates  at  which  they 
accrued,  the  later  debt  being  paid  in  full  before  anything  is  al- 
lowed to  the  lien  of  an  inferior  grade.  The  reason  for  this  is 
because  the  loan,  or  service,  or  whatever  created  the  later  lien  has 
tended  to  preserve  or  improve  the  first  lien-holder  in  security 
for  his  lien.  He  is  to  be  preferred  who  contributed  most  immed- 
iately to  the  preservation  of  the  thing. 

An  important  qualification  of  the  rule  heretofore  governing 
the  priority  of  maritime  liens  on  American  vessels,  is  made  by 
the  Ship  Mortgage  Act  of  1920  (Merchant  Marine  Act,  see  Ap- 
pendix).    By  this  act  certain  mortgages  which  conform  to  its 


MARITIME  LIENS  131 

provisions  are  called  "  preferred  mortgages  "  and  are  made  mari- 
time liens  enforceable  in  admiralty.  In  the  order  of  priority,  a 
preferred  mortgage  lien  comes  next  after  liens  arising  out  of 
tort,  for  wages  of  a  stevedore  when  employed  directly  by  the 
owner,  operator,  master,  ship's  husband,  or  agent  of  the  vessel, 
for  wages  of  the  crew,  for  general  average  and  for  salvage. 
Liens  for  repairs,  pilotage,  towage,  freight  and  charter  hire  come 
in  subsequent  to  "  preferred  mortgages." 

The  subjects  of  liens  for  salvage,  wages,  pilotage  and  towage, 
advances,  mortgages,  freight  and  charter  hire  are  discussed  under 
the  appropriate  titles  in  this  book. 

10.  Lien  for  Repairs  and  Supplies. —  By  act  of  Congress  ap- 
proved June  23,  1 910,  provisions  were  made  which  substantially 
changed  the  law  as  it  existed  theretofore.  This  act  was  repealed 
and  reenacted  with  amendments  by  the  Merchant  Marine  Act  of 
1920  (see  Appendix).  The  latter  act  (Sec.  30),  representing  the 
present  state  of  the  law,  provides : 

Subsection  P.  Any  person  furnishing  repairs,  supplies,  towage, 
use  of  drydock  or  marine  railway,  or  other  necessaries,  to  any  vessel, 
whether  foreign  or  domestic,  upon  the  order  of  the  owner  of  such 
vessel,  or  of  a  person  authorized  by  the  owner,  shall  have  a  maritime 
lien  on  the  vessel,  which  may  be  enforced  by  suit  in  rem,  and  it  shall 
not  be  necessary  to  allege  or  prove  that  credit  was  given  to  the  vessel. 

Subsection  Q.  The  following  persons  shall  be  presumed  to  have 
authority  from  the  owner  to  procure  repairs,  supplies,  towage,  use  of 
drydock  or  marine  railway,  and  other  necessaries  for  the  vessel: 
The  managing  owner,  ship's  husband,  master,  or  any  person  to  whom 
the  management  of  the  vessel  at  the  port  of  supply  is  intrusted.  No 
person  tortiously  or  unlawfully  in  possession  or  charge  of  a  vessel 
shall  have  authority  to  bind  the  vessel. 

A  person  furnishing  supplies  or  repairs  to  a  vessel  in  the  ab- 
sence of  her  owners  or  temporary  owners,  and  elsewhere  than  in 
her  home  port,  and  upon  the  order  of  the  master,  should  inquire 
into  the  necessity  for  the  supplies  or  repairs.  If,  upon  reasonable 
inquiry,  he  finds  that  they  are  necessary,  he  may  safely  furnish 
them,  relying  on  the  credit  of  the  vessel  and  upon  his  right  to  a 
maritime  lien  upon  her.  If  reasonable  inquiry  fails  to  show  any 
necessity,  the  supplier  or  repairer  will  not  be  entitled  to  a  lien, 
even  though  the  master  gave  the  order. 

In  the  case  of  the  Valencia,  165  U.  S.  264,  the  home  port  of  the 
ship  was  Wilmington,  North  Carolina.     She  was  plying  between 


132  THE  LAW  OF  THE  SEA 

New  York  and  Maine.  Coal  was  ordered  for  her  in  New  York, 
not  by  the  master,  but  by  a  steamship  company  doing  business 
in  New  York  whose  relations  to  the  vessel  were  not  inquired  into 
by  the  suppliers  of  the  coal,  li  they  had  inquired,  they  would 
readily  have  learned  that  the  steamship  company  was  a  charterer 
of  the  vessel  and  was  bound  by  the  charter  party  to  "  provide  and 
pay  for  all  coals."  The  coal  was  not  paid  for  and  the  suppliers 
libeled  the  ship.  In  directing  the  libel  to  be  dismissed  the  Su- 
preme Court  said : 

Although  the  Hbellants  were  not  aware  of  the  existence  of  the 
charter  party  under  which  the  Valencia  was  employed,  it  must  be 
assumed  upon  the  facts  certified  that  by  reasonable  diligence  they 
could  have  ascertained  that  the  New  York  Steamship  Company  did 
not  own  the  vessel,  but  used  it  under  a  charter  party  providing  that 
the  charterer  should  pay  for  all  needed  coal.  The  Hbellants  knew 
that  the  steamship  company  had  an  office  in  the  city  of  New  York. 
They  did  business  with  them  at  that  office,  and  could  easily  have 
ascertained  the  ownership  of  the  vessel  and  the  relation  of  the  steam- 
ship company  to  the  owners.  They  were  put  upon  inquiry,  but  they 
chose  to  shut  their  eyes  and  make  no  inquiry  touching  these  matters 
or  in  reference  to  the  solvency  or  credit  of  that  company.  It  is  true 
that  Hbellants  delivered  the  coal  in  the  belief  that  the  vessel,  whether 
a  foreign  or  a  domestic  one,  or  by  whomsoever  owned,  would  be  re- 
sponsible for  the  value  of  such  coal.  But  such  a  belief  is  not  suffi- 
cient in  itself  to  give  a  maritime  lien.  If  that  belief  was  founded 
upon  the  supposition  that  the  steamship  company  owned  the  vessel, 
no  lien  would  exist,  because  in  the  absence  of  an  agreement,  express 
or  implied,  for  a  lien,  a  contract  for  supplies  made  directly  with  the 
owner  in  person  is  to  be  taken  as  made  "  on  his  ordinary  responsi- 
bility, without  a  view  to  the  vessel  as  the  fund  from  which  compen- 
sation is  to  be  derived."  The  St.  Jago  de  Cuba,  9  Wheat.  409.  And 
if  the  belief  that  the  vessel  would  be  responsible  for  the  supplies  was 
founded  on  the  supposition  that  it  was  run  under  a  charter  party, 
then  the  Hbellants  are  to  be  taken  as  having  furnished  the  coal  at  the 
request  of  the  owner  pro  hac  vice,  without  any  express  agreement 
for  a  lien,  and  in  the  absence  of  any  circumstances  justifying  the 
inference  that  the  supplies  were  furnished  with  an  understanding 
that  the  vessel  itself  would  be  responsible  for  the  debt  incurred.  In 
the  present  case,  we  are  informed  by  the  record  that  there  was  no 
express  agreement  for  a  lien,  and  that  nothing  occurred  to  warrant 
the  inference  that  either  the  master  or  the  charterer  agreed  to  pledge 
the  credit  of  the  vessel  for  the  coal. 

We  mean  only  to  decide,  at  this  time,  that  one  furnishing  supplies 
or  making  repairs  on  the  order  simply  of  a  person  or  corporation 
acquiring  the  control  and  possession  of  a  vessel  under  such  a  charter 


MARITIME  LIENS  133 

party  cannot  acquire  a  maritime  lien  if  the  circumstances  attending 
the  transaction  put  him  on  inquiry  as  to  the  existence  and  terms  of 
such  charter  party,  but  he  failed  to  make  inquiry,  and  chose  to  act  on 
a  mere  belief  that  the  vessel  would  be  liable  for  his  claim. 

The  law  is  even  more  succinctly  stated  in  the  case  of  the  Kate,  164 
U.  S.  458,  as  follows : 

The  principle  would  seem  to  be  firmly  established  that  when  it  is 
sought  to  create  a  lien  upon  a  vessel  for  supplies  furnished  upon  the 
order  of  the  master,  the  libel  will  be  dismissed  if  it  satisfactorily  ap- 
pears that  the  libellant  knew,  or  ought  reasonably  to  be  charged  with 
knowledge,  that  there  was  no  necessity  for  obtaining  the  supplies,  or, 
if  they  were  ordered  on  the  credit  of  the  vessel,  that  the  master  had, 
at  the  time',  in  his  hands,  funds,  which  his  duty  required  that  he 
should  apply  in  the  purchase  of  needed  supplies.  Courts  of  admiralty 
will  not  recognize  and  enforce  a  lien  upon  a  vessel  when  the  trans- 
action upon  which  the  claims-  rests  originated  in  the  fraud  of  the 
master  upon  the  owner,  or  in  some  breach  of  the  master's  duty  to  the 
owner,  of  which  the  libellant  had  knowledge,  or  in  respect  of  which 
he  closed  his  eyes,  without  inquiry  as  to  the  facts. 

If  no  lien  exists  under  the  maritime  law  when  supplies  are  fur- 
nished to  a  vessel  upon  the  order  of  the  master,  under  circumstances 
charging  the  party  furnishing  them  with  knowledge  that  the  master 
cannot  rightfully  as  against  the  owner,  pledge  the  credit  of  the 
vessel  for  such  supplies,  much  less  one  is  recognized  under  that  law 
where  the  supplies  are  furnished,  not  upon  the  order  of  the  master, 
but  upon  that  of  the  charterer  who  did  not  represent  the  owner  in 
the  business  of  the  vessel,  but  who,  as  the  claimant  knew,  or  by  rea- 
sonable diligence  could  have  ascertained,  had  agreed  himself  to  pro- 
vide and  pay  for  such  supplies,  and  could  not,  therefore,  rightfully 
pledge  the  credit  of  the  vessel  for  them. 

Where  a  charterer  becomes  the  owner  pro  hac  vice,  as  usually 
occurs  in  the  case  of  a  "  bare-boat  "  charter,  necessary  supplies  or- 
dered by  the  master  will  entitle  the  supplier  to  a  maritime  lien  un- 
der the  statute,  unless  the  charter  party  contains  stipulations  that 
were  known  to  the  supplier  or  which  he  could  have  readily  ascer- 
tained, excluding  such  liens.  Thus  in  the  latest  decision  of  the 
Supreme  Court  in  which  the  act  of  June  23.,  191  o,  was  construed 
(South  Coast  S.  S.  Co.  v.  Rudnbach,  decided  March  i,  1920) 
a  bare  vessel  was  chartered  to  one  Levick,  the  contract  stipulating 
that  Levick  was  to  pay  all  charges  and  save  the  owners  harmless 
from  all  liens.  There  was  also  a  provision  that  the  owner  might 
retake  the  vessel  in  case  Levick  failed  to  discharge  any  liens  within 
thirty  days,  and  a  provision  for  the  surrender  of  the  vessel  free  of 


134  THE  LAW  OF  THE  SEA 

all  liens,  if  Levick  failed  to  make  certain  payments.  The  master 
of  the  ship  had  been  appointed  by  the  owner,  but  was  under  Lev- 
ick's  orders.  When  the  supplies  were  ordered  representatives  of 
the  owners  warned  the  supplier  that  the  steamer  was  under  charter 
and  that  he  must  not  furnish  supplies  on  the  credit  of  the  vessel. 
He  disregarded  the  warning  and  furnished  the  supplies  and  libeled 
the  vessel  for  his  lien.  The  Court  upheld  his  right  to  the  hen, 
holding  that  the  warning'  of  the  owner  was  ineffectual  because  the 
charterer  had  become  the  owner  pro  hac  vice,  the  master  being  his 
agent  and  not  that  of  the  owner,  and  that 

Unless  the  charter  excluded  the  master's  power  the  owner  could 
not  forbid  its  use.  The  charter-party  recognizes  that  liens  may  be 
imposed  by  the  charterer  and  allow  to  stand  for  less  than  a  month, 
and  there  seems  to  be  no  sufficient  reason  for  supposing  the  words  not 
to  refer  to  all  the  ordinary  maritime  liens  recognized  by  the  law. 
The  statute  had  given  a  lien  for  supplies  in  a  domestic  port,  and 
therefore  had  made  that  one  of  these  ordinary  liens.  Therefore  the 
charterer  was  assumed  to  have  power  to  authorize  the  master  to 
impose  a  lien  in  a  domestic  port,  and  if  the  assumption  expressed  in 
words  was  not  equivalent  to  a  grant  of  power,  at  least  it  cannot  be 
taken  to  have  excluded  it.  There  was  nothing  from  which  the  fur- 
nisher could  have  ascertained  that  the  master  did  not  have  power  to 
bind  the  ship. 

11.  Not  Sole  Remedy. —  The  reader  will  not  be  misled  into 
supposing  that  the  absence  of  a  right  to  a  maritime  lien  means 
that  the  debt  is  uncollectible  by  legal  process.  While  the  admir- 
alty court  is  closed  to  the  creditor  if  there  be  no  right  to  a  maritime 
lien,  he  has  the  same  remedy  as  any  other  creditor  by  a  suit  at  law 
to  recover  the  debt  or  damage  from  the  debtor,  or  person  liable, 
i.  e.,  the  owner,  the  temporary  owner,  or  the  person  who  ordered 
the  goods  or  did  the  damage  as  the  case  may  be.  Such  a  remedy 
lacks  the  peculiar  advantages  of  the  maritime  lien  (§2  supra,  this 
chapter).  There  may  also  be  special  remedies  open  to  him  under 
state  statutes  (but  see  §  13,  this  chapter). 

12.  How  Divested. —  Maritime  items  are  only  completely  di- 
vested by  payment  or  by  an  admiralty  sale.  Laches  —  that  is  to 
say  delay  or  sloth  —  on  the  part  of  the  lienor  may  prevent  their 
enforcement  against  the  rights  of  subsequent  lienors  or  purchasers 
for  value  in  good  faith,  but  the  ship  is  really  only  absolutely  free 
from  them  when  she  has  passed  through  a  sale  in  proceedings  in 
rem  —  that  is,  a  suit  against  the  ship.     This  transfers  all  claims 


MARITIME  LIENS  135 

to  the  proceeds  in  the  registry  of  the  court  and  passes  a  clear  title 
to  the  purchaser.  The  Garland,  16  Fed.  283,  is  illustrative;  she 
had  sunk  a  yacht  in  the  Detroit  River  with  great  loss  of  life ;  her 
business  was  that  of  a  ferry  between  Detroit,  Michigan,  and 
Windsor,  Ontario,  and  her  value  was  about  $20,000;  libels  were 
filed  against  her  in  Detroit  on  account  of  the  collision  and  she  was 
then  arrested  in  Windsor,  by  process  from  the  Maritime  Court  of 
Ontario,  for  a  coal  bill  of  $36.30 ;  that  court  sold  her  in  accordance 
with  the  usual  admiralty  practice.  She  then  resumed  her  business 
and  was  arrested  under  the  Detroit  libels.  These  were  dismissed 
by  the  United  States  court  because  all  liens  had  been  divested  by 
the  admiralty  sale  in  Ontario  and  such  sales  are  good  throughout 
the  world.  No  other  sales,  judicial  or  otherwise,  have  this  effect 
since  they  convey  only  the  title  of  the  owner  in  the  thing  and  not 
the  thing  itself.  Maritime  liens,  therefore,  are  not  divested  or 
affected  by  the  foreclosure  of  a  mortgage,  or  a  sheriff's  sale  on 
execution,  or  a  receiver's  sale,  or  any  other  form  of  conveyance 
of  an  owner's  title.  Nor  are  they  divested  by  a  writ  of  execution 
issued  out  of  a  court  of  common  law,  nor  postponed  to  such  exe- 
cution. This  has  been  held,  even  where  the  execution  was  in 
favor  of  the  government. 

13.  State  Liens. —  For  many  years  there  was  an  open  question 
in  the  maritime  law  of  the  United  States  as  to  the  status  of  liens 
which  arose  in  the  home  port  of  the  vessel  and  numerous  con- 
flicting decisions  were  made  by  the  courts.  The  effect  was  that 
in  all  cases  of  liens  arising  out  of  contract,  like  supplies  and  re- 
pairs, the  question  of  upon  whose  credit  the  work  was  done  and 
the  supplies  furnished  became  very  important;  where  the  trans- 
action was  in  the  home  port,  there  was  a  presumption  that  it 
was  on  the  personal  credit  of  the  owner  and  no  lien  was  allowed; 
and  the  theory  of  home  port  became  extended  to  include  the  entire 
State  in  which  the  owner  resided.  Thereupon  all  of  the  states 
interested  in  maritime  affairs  enacted  statutes  providing  for  liens 
upon  vessels,  both  maritime  and  nonmaritime  in  their  nature,  and 
a  sort  of  admiralty  proceeding  against  the  ship  to  enforce  them; 
the  procedure  portions  of  these  statutes  were  generally  held  void 
as  interfering  with  the  exclusive  jurisdiction  in  rem  of  the  Federal 
courts,  but  the  liens  which  they  created,  if  maritime  in  their  nature, 
were  usually  enforced.  By  the  act  of  Congress  of  June  23,  1910 
(as  amended  and  reenacted  by  the  Merchant  Marine  Act  of  1920, 


136  THE  LAW  OF  THE  SEA 

see  Appendix),  relating  to  liens  on  vessel  for  repairs,  towage 
supplies  or  other  necessaries,  it  was  declared  unnecessary  to 
allege  or  prove  that  credit  had  been  given  the  vessel  and  also 
provided  that  the  Act  shall  supersede  the  provisions  of  all  state 
statutes  conferring  liens  on  vessels  so  far  as  they  purport  to 
create  rights  in  rem,  that  is  to  say,  rights  against  the  vessel  her- 
self. It  is  yet  unsettled  whether  those  of  a  non-maritime  class 
survive,  as  in  the  case  of  the  lien  for  shipbuilding  which,  not  be- 
ing regarded  by  the  admiralty  as  maritime,  has  been  enforceable 
under  the  state  statutes. 

14.  Builders'  and  Mechanics'  Liens. —  These  may  arise  upon 
a  ship  under  the  provision  of  local  statutes  and  be  entirely  en- 
forceable so  long  as  they  do  not  come  into  conflict  with  maritime 
liens  and  the  exclusive  jurisdiction  of  the  admiralty.  So,  also, 
a  lienor  may  assert  his  common-law  right  to  retain  possession  of 
the  'ship  until  payment  is  made.  This  depends  entirely  on  pos- 
session and  cannot  be  enforced  by  judicial  proceedings,  although 
it  may  be  recognized  by  the  court  when  it  arrests  the  vessel  on 
other  accounts. 

15.  Foreign  Liens. —  Maritime  liens  often  depend  on  the  law 
of  the  place  in  which  the  obligation  is  incurred  and  also  upon  the 
law  of  the  ship's  flag.  In  other  words,  inquiry  must  frequently  be 
made  whether  the  local  law  gives  a  lien,  whether  the  law  unde-r 
which  the  ship  sails  gives  the  master  power  to  create  the  lien,  and 
whether  the  country  in  which  the  suit  is  commenced  has  the  legal 
machinery  to  enforce  the  lien.  There  is  no  doubt  about  our  own 
admiralty  courts  having  adequate  jurisdiction  and  equipment  to 
enforce  any  maritime  lien  which  exists  by  the  law  of  a  foreign 
country.  Its  enforcement  is  a  matter  of  comity  and  not  of  right 
when  the  parties  are  foreigners.  Thus  the  maritime  lien  for  col- 
lision will  generally  be  enforced  wherever  the  oflfending  ship  may 
be  seized,  irrespective  of  the  place  where  the  collision  occurred. 
That  lien  exists  by  virtue  of  the  general  maritime  law.  On  the 
other  hand,  there  may  be  a  closer  question  in  regard  to  the  lien 
for  supplies.  They  may  be  furnished  in  a  port  of  a  country 
whose  laws  do  not  provide  such  a  maritime  lien  but  only  give  a 
remedy  by  attachment  of  the  ship.  The  tendency  of  the  weight  of 
authority  is  to  enforce  such  liens  in  the  courts  of  this  country 
whenever  they  exist  by  virtue  of  the  general  maritime  law,  even 


MARITIME  LIENS  137 

if  they  could  not  be  enforced  in  the  courts  of  the  country  where 
they  arose.  Possibly  this  gives  a  foreigner  an  advantage  here  over 
what  he  would  have  at  home,  but  this  is  not  really  material. 

16.  Enforcement    of    Liens. —  This   is    discussed   in    Chapter 
XVII,  Admiralty  Remedies. 

REFERENCES  FOR  GENERAL  READING 

Admiralty,  Hughes,  Chapter  XVII. 

Admiralty  Liens  of  Material  Men,  IX  American  Law  Review,  654. 

Features  of  Admiralty  Liens,  XVI  American  Law  Review,  193. 

Maritime  Liens,  4  Law  Quarterly  Review,  379. 

Priorities  among  Maritime  Liens,  II  University  Law  Review,  122. 

The  DeSmet,  10  Fed.  483  (excellent  annotation). 

Lottawanna,  21  Wall.  558. 

John  G   Stevens,  170  U.  S.  113. 


CHAPTER  X 

MORTGAGES  AND  BONDS 

1.  Definitions. —  A  vessel  mortgage  is  a  conveyance  of  the  ship 
as  security.  A  bottomry  bond  is  a  contract  in  the  nature  of  a 
mortgage  by  which  the  ship  is  pledged  as  security  for  the  repay- 
ment of  money  borrowed  and  the  lender  assumes  the  risk  of  loss 
if  the  ship  does  not  survive  in  consideration  of  maritime  interest, 
usually  at  a  high  rate.  Respondentia  is  a  loan  on  the  cargo,  to  be 
repaid  if  the  goods  arrive,  but,  if  lost,  the  borrower  is  exonerated. 
Like  bottomry,  it  is  essentially  a  loan  without  personal  liability 
beyond  the  value  of  the  property  mortgaged.  Vessel  bonds  are 
a  modern  form  of  security  in  the  form  of  debentures  of  the  owner, 
carrying  interest  coupons  and  secured  by  a  trust  deed  or  mort- 
gage of  the  ship. 

2.  Bottomry  Bonds. —  The  name  of  this  class  of  security  on 
the  ship  arose  from  the  fact  that  the  bottom  or  keel  of  the  ship  was 
figuratively  used  to  express  the  whole  and  to  indicate  that  the 
entire  vessel  secured  the  loan.  The  repayment  of  money  bor- 
rowed on  bottomry  depends  on  the  safe  arrival  of  the  ship;  if  she 
is  lost  the  loan  is  lost  with  her.  The  money  is  at  the  risk  of  the 
lender.  Under  an  ordinary  mortgage,  the  borrower  must  pay  at 
all  events  and  his  personal  liability  survives  the  loss  of  his  vessel. 
Under  bottomry,  the  risk  is  shifted.  In  consideration  of  this  risk, 
the  lender  is  permitted  to  charge  a  high  rate  of  interest  without 
violating  the  law  of  usury.  Rates  of  interest  as  high  as  25  per 
cent,  and  higher  have  been  upheld,  and  while  in  some  cases  the 
courts  have  ordered  a  reduction  in  the  rate  when  it  was  regarded 
as  clearly  extortionate,  the  strong  inclination,  of  the  courts  is  to 
carry  out  the  bargain  as  made  by  the  parties.  The  bond  must  be 
in  writing.  No  particular  form  is  essential  but  it  must  rest  on 
the  assumption  of  maritime  risks  by  the  lender  or  it  will  be  no 
bottomry.  It  may  be  expressed  after  the  precedent  of  a  common- 
law  bond,  with  a  recital  of  the  circumstances,  provisions  showing 
that  the  usual  risks  are  on  account  of  the  obligee ;  and  stipulations 
providing  that  the  condition  of  performance  or  discharge  is  the 
safe  arrival  of  the  ship  at  her  designated  haven.     The  lender  may 

138 


MORTGAGES  AND  BONDS  139 

secure  himself  against  loss  by  taking  out  insurance.  Such  bonds 
may  be  made  by  the  owner,  in  the  home  port,  although  this  is  not 
usual.  He  may,  of  course,  make  them  anywhere.  The  master, 
however,  can  only  do  so  as  in  cases  of  great  necessity  and  the  ab- 
sence of  the  owner.  His  power,  in  this  respect,  is  like  his  power 
to  sell.  His  first  duty  is  to  obtain  funds  on  the  personal  credit 
of  the  owner.  The  duty  of  the  master  to  communicate  with  the 
owner,  if  possible,  before  giving  a  bottomry  bond  is  the  same  as 
his  duty  to  communicate  before  selling  the  vessel  (Chapters  H, 
§  14;  IV,  §  9).  For  this  reason  and  in  view  of  modern  facilities 
for  communication  the  giving  or  making  of  bottomry  bonds  by 
masters  has,  Hke  the  sale  of  a  vessel  by  her  master,  become  rare 
in  modern  times. 

A  good  illustration  of  a  bottomry  bond  is  found  in  the  case  of 
the  Grapeshot,  9  Wall.  129.  There  the  libel  recited  that  the 
Grapeshot  was  at  Rio  de  Janeiro  in  April,  1858,  was  in  great  need 
of  reparation,  provisions  and  other  necessaries  to  render  her  fit 
and  capable  of  proceeding  to  New  Orleans,  the  master  having  no 
funds  or  credit  in  Rio  de  Janeiro,  and  the  owner  not  residing 
there  and  having  no  funds  or  credit  there,  the  libellants  at  the 
request  of  the  master  loaned  him  $9,767.40,  on  the  bottomry  and 
hypothecation  of  the  bark  at  the  rate  of  19^  cents,  maritime  inter- 
est ;  that  the  master  did  expend  the  sum  borrowed  for  repairing, 
victualing  and  manning  the  bark  to  enable  her  to  proceed  to  New 
Orleans  and  that  she  could  not  possibly  have  proceeded  with  safety 
without  such  repairs  and  other  necessary  expenses  attending  the 
refitting  of  her.  Chief  Justice  Chase  described  the  general  char- 
acteristics of  a  bottomry  bond  as  follows : 

A  bottomry  bond  is  an  obligation,  executed  generally,  in  a  foreign 
port,  by  the  master  of  a  vessel  for  repayment  of  advances  to  supply 
the  necessities  of  the  ship,  together  with  such  interest  as  may  be 
agreed  on ;  which  bond  creates  a  lien  on  the  ship,  which  may  be  en- 
forced in  admiralty  in  case  of  her  safe  arrival  at  the  port  of  desti- 
nation ;  but  becomes  absolutely  void  and  of  no  effect  in  case  of  her 
loss  before  arrival. 

Such  a  bond  carries  usually  a  very  high  rate  of  interest,  to  cover 
the  risk  of  loss  of  the  ship  as  well  as  a  liberal  indemnity  for  other 
risks  and  for  the  use  of  the  money,  and  will  bind  the  ship  only  where 
the  necessity  for  supplies  and  repairs,  in  order  to  the  performance  of 
a  contemplated  voyage,  is  a  real  necessity,  and  neither  the  master  nor 
the  owners  have  funds  or  credit  available  to  meet  the  wants  of  the 
vessel. 


I40  THE  LAW  OF  THE  SEA 

The  Court  also  quoted  with  approval  the  decision  in  the  old  case 
of  the  Aurora,  i  Wheat.  96,  in  which  it  was  said : 

To  make  a  bottomry  bond,  executed  by  the  master,  a  valid  hypothe- 
cation, it  must  be  shown  by  the  creditor  that  the  master  acted  within 
the  scope  of  his  authority ;  or,  in  other  words,  that  the  advances  were 
made  for  repairs  or  supplies  necessary  for  effecting  the  objects  of 
the  voyage,  or  the  safety  and  security  of  the  ship.  And  no  presump- 
tion should  arise  in  the  case  that  such  repairs  or  supplies  could  be 
procured  on  reasonable  terms  with  the  credit  of  the  own^er,  inde- 
pendent of  such  hypothecation. 

And  in  suinmarizing  the  conclusion  reached  in  the  case  it  was  said  : 

To  support  hypothecation  by  bottomry,  evidence  of  actual  necessity 
for  repairs  and  supplies  is  required  and,  if  the  fact  of  necessity  be 
left  unproved,  evidence  is  also  required,  of  due  inquiry  and  of  rea- 
sonable grounds  of  belief  that  the  necessity  was  real  and  exigent. 

These  bonds  are  not  required  to  be  placed  on  record  but  great 

diligence  should  be  employed  in  enforcing  them  so  that  the  rights 

of  innocent  purchasers  or  subsequent  Henors  may  not  be  impaired. 

3.  Respondentia. —  This  is  security  for  a  loan  on  marine  in- 
terest created  on  the  cargo.  It  may  be  created  by  the  cargo-owner, 
at  home,  if  he  sees  fit,  but  ordinarily,  only  arises  out  of  necessity 
during  the  course  of  the  voyage.  The  master  has  the  same  au- 
thority to  borrow  on  the  security  of  the  cargo  as  he  has  in  cases 
of  bottomry.  The  proceeding  must  be  sanctioned  by  great  neces- 
sity and  liability  to  communicate  with,  or  obtain  relief  from,  the 
owner  of  the  goods.  The  duty  of  communication  is  the  same  as 
in  the  case  of  bottomry  bonds  (see  preceding  sections).  The  rule 
with  respect  to  interest  is  the  same  as  that  governing  bottomry 
bonds.  The  instrument  may  be  in  any  form  which  expresses  the 
facts  and  conditions ;  an  ordinary  bill  of  sale  may  be  used  or  the 
form  of  a  bottomry  bond.  The  instrument  is  not  required  to  be 
recorded. 

The  case  of  Ins.  Co.  v.  Gossler,  6  Otto  645,  contains  an  exam- 
ple of  a  bond,  which  was  both  bottomry  and  respondentia.  The 
bark  Frances  en  route  from  Java  to  Boston  with  a  cargo  of  sugar 
encountered  a  hurricane  which  compelled  the  master  to  cut  away 
her  mast  to  save  the  vessel  and  put  into  Singapore  for  repairs. 
Destitute  of  funds  and  without  credit,  the  master  executed  a  bond 
with  maritime  interest  at  27^/^  per  cent.,  secured  upon  the  boat, 
cargo  and  freight.  When  nearing  the  completion  of  her  voyage 
the  bark  was  cast  away  on  the  shore  of  Cape  Cod.     She  could  not 


MORTGAGES  AND  BONDS  141 

be  ealved  as  an  intact  vessel,  but  was  sold  as  a  wreck  and  subse- 
quently broken  up  by  the  purchaser  in  order  to  make  use  of  the 
parts  of  her.  Some  of  her  cargo  was  saved.  The  Court  held 
that  the  salvaged  portion  of  the  cargo  and  the  wreck  as  she  lay 
on  the  beach  must  respond  to  the  obligation  of  the  bond,  saying 
that  nothing  but  an  utter  annihilation  of  the  thing  hypothecated 
would  discharge  the  borrower  on  bottomry,  the  rule  being  that  the 
property  saved,  whatever  it  may  be  in  amount,  continues  subject 
to  hypothecation. 

Unless  the  ship  be  actually  destroyed  and  the  loss  to  the  owners 
absolute,  it  is  not  an  utter  loss  within  the  meaning  of  such  a  contract. 
If  the  ship  still  exists,  although  in  such  a  state  of  damage  as  to  be 
constructively  totally  lost,  within  the  meaning  of  a  policy  of  insur- 
ance; .  ,  .  she  is  not  utterly  lost  within  the  meaning  of  that  phrase 
in  the  contract  of  hypothecation. 

Thus,  the  doctrine  of  "  constructive  total  loss,"  which  is  impor- 
tant in  the  law  of  marine  insurance,  has  no  application  to  bot- 
tomry. It  is  custoinary  in  bottomry  and  respondentia  bonds  to 
insert  a  clause  reserving  to  the  lender,  in  case  of  utter  loss,  any 
average  that  may  be  secured  upon  all  salvage  recoverable. 

4.  Necessity  for  Advances. —  The  lender  of  money  on  a  bot- 
tomry bond  is  under  obligation  to  satisfy  himself  that  the  supplies 
or  refitment  for  which  the  money  is  borrowed  are  necessarily  re- 
quired by  the  vessel.  The  act  of  June  23,  1910  (discussed  in  §  9 
of  preceding  chapter),  apparently  has  no  application  to  money 
advanced  on  bottomry  bonds  and  certainly  has  no  application  to 
respondentia  bonds.  If  the  actual  need  for  the  advance  sought 
to  be  secured  by  the  bottomry  or  respondential  bond  does  not  exist, 
the  bond  will  not  constitute  a  Hen  upon  the  vessel  or  cargo. 

5.  Mortgages. —  These  are  species  of  chattel  mortgages.  The 
ship  is  a  chattel  or  personal  property,  for  many  purposes.  Prior 
to  June  5,  1920,  these  mortgages  were  not  recognized  as  maritime 
transactions.  The  Merchant  Marine  Act  of  that  date  makes  rad- 
ical changes  in  the  law  governing  ship  mortgages.  The  new 
provisions  are  to  be  found  in  Section  30,  which  is  to  be  cited, 
independently  of  the  rest  of  the  statute,  as  the  "  Ship  Mortgage 
Act,  1920,"  and  is  printed  in  full  with  the  rest  of  the  Merchant 
Marine  Act  in  the  Appendix. 

6.  Are  Mortgages  Maritime  Contracts?  —  An  ordinary  mort- 
gage upon  a  vessel,  whether  made  to  secure  the  purchase  money 


142  THE  LAW  OF  THE  SEA 

or  to  obtain  funds  for  general  purposes,  is  not  a  maritime  contract. 
This  is  the  rule  in  this  country,  as  announced  by  the  Supreme  Court 
in  the  J.  E.  Rumbell,  148  U.  S.  i,  although  it  is  different  under 
the  general  maritime  law  in  other  countries.  Accordingly,  courts 
of  admiralty  in  the  United  States,  have  no  jurisdiction  of  a  libel 
to  foreclose  a  mortgage  or  to  enforce  title  or  right  to  possession 
under  it.  If,  however,  the  ship  has  been  sold  under  admiralty 
process,  and  there  are  proceeds  in  the  registry  after  satisfying 
maritime  liens,  the  court  will  pay  over  the  surplus,  to  a  mortgagee 
in  preference  to  the  owner  or  general  creditors. 

The  Ship  Mortgage  Act  (supra)  makes  a  sweeping  exception 
to  the  foregoing  rule  in  cases  of  American  vessels  where  the 
mortgagee  is  an  American  citizen  and  where  the  parties  fulfill  cer- 
tain formalities  required  by  the  Act  and  discussed  in  the  next 
section.  The  Act  provides  that  these  mortgages  shall  be  known 
as  "  preferred  mortgages  "  and  confers  upon  the  courts  of  ad- 
miralty exclusive  jurisdiction  to  foreclose  them.  There  has  yet 
been  no  judicial  interpretation  of  this  Act.  Some  doubt  may  be 
entertained  whether  it  is  within  the  power  of  Congress  to  convert 
ship  mortgages  into  maritime  contracts;  that  is  to  say,  can  Con- 
gress take  a  transaction,  which  has  always  been  regarded  as  wholly 
foreign  to  the  admiralty  and  confer  upon  it  a  maritime  quality? 
The  decision  of  this  point  is  of  the  utmost  importance  and  will  be 
awaited  with  the  greatest  concern  by  every  one  interested  in  ships 
and  shipping. 

7,  When  Postponed  to  Other  Liens. —  An  ordinary  vessel 
mortgage  is  a  very  inferior  grade  of  security  because  it  is  subordi- 
nate to  all  maritime  liens  and  has  only  a  qualified  and  dubious 
standing  in  the  only  courts  which  enforce  them.  One  who  ad- 
vances money  to  a  ship  or  her  owner  on  mortgage  is  bound  to  know 
that  the  ship  navigates  on  credit,  and  must  continue  to  accumulate 
liens  in  order  to  earn  freight,  and  that  she  may  be  pledged  for  bot- 
tomry or  incur  liability  for  torts.  He  is  therefore  postponed  to 
sailors'  wages,  salvage,  towage,  advances,  bottomry,  general  aver- 
age, repairs,  supplies,  collision,  personal  injury,  damage  to  cargo, 
breach  of  contract,  penalties,  and  liens  created  by  local  law  which 
the  admiralty  will  enforce. 

Here  again  the  Ship  Mortgage  Act,  1920,  makes  a  radical 
change  in  the  case  of  "  preferred  mortgages  "  given  upon  Amer- 
ican vessels  to  secure  American  investors.     The  Act  makes  the 


MORTGAGES  AND  BONDS  143 

lien  of  a  "  preferred  mortgage  "  inferior  to  liens  of  prior  date  and 
liens  for  damages  arising  out  of  tort,  for  wages  of  stevedores 
when  employed  directly  by  the  owner,  operator,  master,  ship's 
husband,  or  agent  of  the  vessel,  for  wages  of  crew,  general  aver- 
age and  salvage,  including  contract  salvage;  but  superior  to  all 
other  liens,  such  for  example  as  repairs,  supplies,  towage,  pilotage, 
etc. 

8.  Form. —  No  particular  form  is  essential  to  a  vessel  mortgage 
except  that  the  requisites  of  the  Federal  Statutes  in  regard  to 
recording  and  conveyance  must  be  observed  if  it  is  to  be  placed 
on  record  in  the  office  of  a  collector  of  customs.  They  require 
that  every  instrument  in  the  nature  of  a  bill  of  sale  or  other  con- 
veyance or  incumbrance  of  any  ship  or  vessel,  shall  be  duly 
acknowledged  before  a  notary  public  or  other  officer  authorized  to 
take  acknowledgments  of  deeds  (7  U.  S.  Comp.  St.  §§  7778, 
7779).  It  should  contain  a  copy  of  the  last  certificate  of  registra- 
tion or  enrollment.  Government  blank  mortgages  can  usually  be 
obtained  at  the  custom  house  and  are  preferred,  although  any  in- 
strument following  their  general  form  will  be  sufficient.  A  bill 
of  sale  may  be  used,  although  absolute  in  its  terms,  and  the  fact 
that  it  is  only  security  can  be  shown  by  parole. 

Trust-deeds  or  mortgages  securing  issues  of  bonds  are  in  gen- 
eral use  where  large  amounts  are  involved.  These  forms  are  very 
elaborate  and  resemble  railroad  mortgages  in  their  elaborate  de- 
tails. In  all  vessel  mortgages,  important  provisions  are  those  in 
regard  to  the  insurance,  the  amount  of  liens  which  the  ship  may 
incur,  the  waters  which  she  may  navigate,  and  the  rights  of  the 
mortgagee  on  default.  It  is  desirable  to  provide  for  contingencies, 
as  far  as  possible,  by  clear  and  definite  agreements  in  the  in- 
struments. 

To  entitle  a  mortgage  of  an  American  vessel  to  an  American 
mortgagee  to  the  status  of  a  "  preferred  mortgage  "  under  the 
Ship  Mortgage  Act,  1920,  giving  its  lien  the  superiority  described 
in  the  preceding  section,  it  is  necessary  that  it  should  be  recorded ; 
that  an  affidavit  be  filed  at  the  time  of  recordation  to  the  effect 
that  thfe  mortgage  is  made  in  good  faith  and  without  design  to 
hinder,  delay  or  defraud  any  existing  or  future  creditor  of  the 
mortgagor  or  any  lienor;  and  that  there  be  endorsed  upon  the 
ship's  documents  the  names  of  the  mortgagor  and  mortgagee, 
the  time  and  date  of  the  endorsement ;  the  amount  and  date  of  the 


144  THE  LAW  OF  THE  SEA 

maturity  of  the  mortgage.  The  formahties  to  be  observed  in  the 
creation  of  "  preferred  mortgages  "  are  described  in  detail  in  the 
Act  which  is  printed  in  full  in  the  Appendix  and  should  be  ob- 
served with  scrupulous  exactness. 

9.  Recording. —  No  mortgage  of  any  vessel  of  the  United 
States  is  valid  against  third  parties  unless  it  is  duly  recorded  in 
the  office  of  the  collector  of  customs  where  such  vessel  is  regis- 
tered or  enrolled.  She  must  be  registered  or  enrolled  by  the  col- 
lector of  that  collection  district  which  includes  the  port  to  which 
such  vessel  shall  belong  at  the  time  of  her  registry ;  which  port 
shall  be  deemed  to  be  that  at  or  nearest  to  which  the  owner,  if 
there  be  but  one,  or,  if  more  than  one,  the  husband  or  acting  and 
managing  owner  of  such  vessel  usually  resides.  Unless  a  mort- 
gage is  properly  recordable  in  the  custom  house,  the  mere  fact  that 
it  is  recorded  there  is  insufficient  to  give  it  validity  against  others 
than  the  mortgagor.  Record  in  the  wrong  office  and  premature 
record  in  the  right  office  are  equally  invalid.  Thus  a  mortgage 
was  held  bad  against  general  creditors  in  the  case  of  the  Empire 
Shipbuilding  Company,  221  Fed.  223,  where  it  was  made  before 
the  ship  was  completed  and  recorded  on  the  same  day  she  was 
enrolled.  The  proper  course  would  have  been  to  first  enroll  the 
ship  as  a  vessel  of  the  United  States  and  then  execute  and  record 
the  mortgage.  As  we  have  observed  in  Chapter  H,  §  16,  supra, 
where  a  vessel  at  sea  is  mortgaged  it  is  wise,  in  order  to  be  safe 
until  she  returns,  to  record  the  mortgage  at  the  home  port,  as 
shown  by  her  outstanding  document,  as  well  as  at  the  new  home 
port  if  there  is  to  be  a  change  of  home  port. 

ID.  Rights  of  Mortgagee. —  These  depend  principally  upon  the 
stipulation  in  the  mortgage.  He  is  entitled  to  have  his  security 
made  available  to  the  satisfaction  of  his  debt,  but,  until  fore- 
closure, the  ship  is  subject  to  many  claims  which  may  impair  or 
destroy  its  value.  If  seized  by  admiralty  process,  the  mortgagee 
may  appear  and  protect  his  interest,  as  by  taking  possession  under 
the  usual  claim  and  bond.  Seizures  or  levies  under  local  law  are 
subject  to  the  rights  of  the  owner  of  a  valid  mortgage.  Generally, 
the  terms  of  the  instrument  will  provide  that,  upon  any  default  by 
the  mortgagor  or  impairment  of  the  security  by  acts  of  third  par- 
ties, the  mortgagee  may  take  possession,  declare  the  entire  debt 
due,  and  foreclose.  Where  maritime  liens  aflfect  the  security,  the 
mortgagee  is  entitled  to  pay  them  and  be  subrogated  thereto,  that 


MORTGAGES  AND  BONDS  145 

is  to  say,  after  discharging  the  liens,  he  stands  in  the  shoes  of  the 
lienors.  Where  the  ship  has  been  arrested  and  sold  by  a  court  of 
admiralty,  and  its  proceeds  are  in  the  registry,  he  may  appear  and 
file  an  intervening  petition  for  the  protection  of  his  interest 
therein.  Where  the  admiralty  disclaims  jurisdiction  over  vessel 
mortgages,  it  will  pay  over  surplus  proceeds  to  the  mortgagee  in 
preference  to  the  owner  or  the  owner's  general  creditors.  So  the 
mortgagee  may  answer  and  contest  the  claims  of  the  lienors  in 
their  proceedings  against  the  ship. 

11.  Liabilities  of  Mortgagee. —  A  mortgagee  in  possession  of 
the  ship  becomes  liable  as  owner  for  supplies  furnished  or  repairs 
made  at  his  request  or  at  the  request  of  those  apparently  author- 
ized to  act  for  him.  So,  if  he  operates  the  ship,  he  will  be  liable 
for  the  risks  and  expenses  of  the  voyage. 

12.  Transfer  and  Payment. —  A  vessel  mortgage  may  be  as- 
signed or  transferred  like  other  similar  forms  of  security.  If  the 
debt  is  evidenced  by  negotiable  promissory  notes  or  bonds,  the 
transfer  of  them  carries  with  it  the  security,  although  the  more 
usual  and  convenient  way  is  by  a  formal  assignment  of  mortgage 
placed  on  record  with  the  collector.  The  assignee  succeeds  to  all 
the  rights  of  the  original  mortgage.  So  the  mortgage  may  descend 
to  heirs  or  pass  to  creditors  like  other  personal  property,  in  ac- 
cordance with  the  law  of  the  owner's  domicile. 

On  payment  of  the  debt,  the  mortgage  is  automatically  can- 
celed and  the  mortgagor  is  entitled  to  have  the  fact  placed  upon 
the  records  by  the  usual  certificate  of  payment  and  discharge. 

In  the  case  of  "  preferred  mortgages  "  under  the  Ship  Mort- 
gage Act,  1920,  the  ship's  documents  may  not  be  surrendered  (ex- 
cept in  case  of  forfeiture  or  judicial  sale)  without  the  approval 
of  the  Shipping  Board  which  will  be  withheld  unless  the  mort- 
gagee consents,  and  the  interest  of  the  mortgagee  will  not  be 
terminated  by  a  forfeiture  of  the  vessel  unless  the  mortgagee  was 
implicated  in  the  act  which  caused  the  forfeiture.  No  rights 
under  any  mortgage  of  an  American  ship,  whether  preferred  or 
not,  may  be  assigned  to  any  person  not  a  citizen  of  the  United 
States  without  the  approval  of  the  Shipping  Board. 

13.  Foreclosure. —  A  mortgage  upon  an  American  vessel,  al- 
though necessarily  recorded  according  to  Federal  law,  is  still  only 
a  chattel  mortgage  for  many  purposes  and  must  be  foreclosed  in 
accordance  with  local  law.     This  will  be  in  one  of  three  ways: 


146  THE  LAW  OF  THE  SEA 

by  a  suit  in  a  court  of  competent  jurisdiction  to  obtain  a  decree  of 
foreclosure  and  sale,  by  a  sale  in  accordance  with  local  statutory 
provisions  in  respect  of  chattel  mortgages,  by  exercise  of  the 
power  of  sale  which  is  usually  contained  in  the  instrument  itself. 
The  last  is  the  method  best  adapted  to  vessel  property  and  care- 
fully drawn  mortgages  usually  contain  plain  and  adequate  pro- 
visions for  that  purpose.  If,  however,  the  mortgagee  be  an 
American  citizen  and  the  requirements  of  the  Ship  Mortgage 
Act,  1920,  with  reference  to  "  preferred  mortgages  "  have  been 
complied  with,  the  foreclosure  proceeding  is  to  be  instituted  in 
a  United  States  District  Court  sitting  in  admiralty,  and  no  one 
except  an  American  citizen  may  purchase  an  American  ship  at  a 
sale  by  admiralty  decree  in  a  suit  in  rem.  The  mortgagor's  title 
can  only  be  extinguished  by  foreclosure  but  stipulations  giving  the 
mortgagee  the  power,  on  breach  of  condition,  to  dispose  of  the 
mortgaged  property,  at  public  or  private  sale,  and  after  applying 
the  proceeds  to  his  expense  and  debt,  to  account  for  the  surplus  to 
the  mortgagor,  are  valid  and  may  be  executed  without  resort  to  a 
court.  The  mortgagor  may  appoint  the  mortgagee,  as  well  as  any 
other  person,  to  sell  his  property  for  the  purpose  of  satisfying  his 
debts.  The  mortgagee  should  proceed  strictly  in  accordance  with 
the  power  of  sale  and  carefully  observe  its  terms  in  regard  to  no- 
tice, time  and  place.  The  conduct  and  fairness  of  such  sales  are 
open  to  investigation  at  the  instance  of  the  mortgagor  and  will  be 
set  aside  on  proof  of  unfair  or  oppressive  conduct  or  deviation 
from  the  terms  of  the  power  or  statute.  It  is  not  necessary  to  hold 
the  sale  on  board  the  ship  if  the  mortgage  provides  another  place, 
but,  in  the  absence  of  such  a  provision,  it  would  be  safer  to  so 
make  the  sale  as  there  are  authorities  holding  that  the  mortgaged 
property  must  be  in  view  when  the  sale  is  made.  There  are  nu- 
merous rules  in  the  general  law  of  foreclosure  of  chattel  mort- 
gages which  are  quite  inapplicable  to  ships  and  much  embarrass- 
ment may  be  avoided  if  the  instrument  is  drafted  with  these  in 
mind.  The  courts  will  enforce  the  contract  as  the  parties  make  it, 
if  its  provisions  are  plain  and  are  carefully  observed.  As  in  other 
cases,  the  sale  may  be  adjourned  from  time  to  time  and  the  mort- 
gagee may  employ  an  agent  or  attorney  to  make  it.  The  debt 
may  be  used  instead  of  money ;  the  mortgagee  may  bid  in  the 
property  himself  and  execute  an  appropriate  bill  of  sale.  The 
power  of  sale  is  merely  cumulative  and  will  not  prevent  a  suit  for 


MORTGAGES  AND  BONDS  147 

foreclosure  or  an  action  at  law  on  the  debt.  The  sale  is,  of  course, 
subject  to  all  maritime  liens  superior  to  the  mortgagee,  but  will 
extinguish  all  subordinate  liens  and  subsequent  titles  if  the  mort- 
gage was  duly  recorded. 

Where  an  American  ship  subject  to  a  "  preferred  mortgage  " 
is  sold  at  an  admiralty  sale  at  the  suit  of  a  lienor  whose  lien 
is  inferior  to  that  of  the  mortgage,  the  Ship  Mortgage  Act,  1920, 
provides  that  the  vessel  shall  be  sold  free  from  all  pre-existing 
claims,  but  the  court  shall,  at  the  request  of  the  mortgagee,  the 
libellant  or  any  intervenor,  require  the  purchaser  to  give  and  the 
mortgagor  ^  to  accept  a  new  mortgage  of  the  vessel  for  the  term 
of  the  original  mortgage,  and  in  that  case  the  mortgagee  shall  not 
be  paid  from  the  proceeds  of  the  sale  and  the  purchase  price  shall 
be  diminished  in  the  amount  of  the  new  mortgage  debt. 

REFERENCES  FOR  GENERAL  READING 

Chattel  Mortgages,  Herman  (1877),  Chapter  XIII. 

Mortgages,  Boone,  §  254. 

J.  E.  Rumbell,  148  U.  S.  i. 

Grapeshot,  9  Wall.  129. 

Blake,  107  U.  S.  418. 

O'Brien  v.  Miller,  168  U.  S.  287. 

1  Apparently  a  misprint  in  the  act  for  mortgagee. 


CHAPTER  XI 
COLLISION 

1.  Definition. —  In  maritime  law,  collision  is  the  impact  of  ship 
against  ship,  although  usage  is  increasing  the  scope  of  the  word 
so  as  to  include  contact  with  other  floating  bodies.  It  does  not 
include  stranding  or  running  into  structures  forming  a  part  of  the 
land,  such  as  bridges  and  wharves. 

The  question  whether  a  collision  is  a  subject  for  adjudication 
in  admiralty  is  frequently  one  of  some  nicety.  What  constitutes 
a  vessel  within  the  meaning  of  admiralty  jurisprudence  has  been 
discussed  in  Chapter  i,  §  4.^  While,  in  general,  objects  which 
come  into  collision  must  be  afloat  in  the  water  to  warrant  recourse 
to  the  admiralty  courts,  and  certainly  must  not  be  permanently  at- 
tached to  the  shore,  nevertheless  the  jurisdiction  has  been  exer- 
cised when  the  collision  was  between  a  barge  and  a  pier  erected  in 
the  midst  of  a  stream  and  unlawfully  obstructing  navigation. 
Atlee  V.  Union  Packet  Co.,  21  Wall.  (U.  S.)  389.  The  jurisdic- 
tion has  also  been  exercised  where  boats  have  come  into  collision 
with  submerged  and  stranded  wrecks  and  sunken  articles. 

2.  Liability  Dependent  on  Negligence. —  Liability  for  col- 
lision depends  on  negligence  or  fault  causing  or  contributing  to 
the  disaster.  Such  negligence  may  be  on  the  part  of  the  ships 
actually  in  contact  with  each  other  or  of  outside  vessels  and  con- 
sists in  the  violation  of  the  statutory  regulations  for  preventing 
collisions  at  sea  or  the  failure  to  exercise  that  skill,  care,  and  nerve 
ordinarily  displayed  by  the  average  competent  master.  CoUisions 
may  occur  without  negligence,  or  by  inscrutable  fault,  and  then 
there  is  no  liability  for  the  resulting  damage.  Such  are  collisions 
solely  due  to  the  darkness  of  the  night  or  to  storms.  In  the 
Morning  Light,  2  Wall.  550,  the  collision  occurred  at  4  a.  m.,  on 
an  intensely  dark  night  in  a  dense  fog  and  rain.  The  court 
(Clifford,  J.)  said: 

1  In  Seabrook  v.  Raft,  40  Fed.  596,  where  there  was  a  collision  between 
a  raft  and  a  dredge,  moored  by  six  anchors,  the  jurisdiction  was  sustained. 

148 


COLLISION  149 

Reported  cases  where  it  has  been  held  that  collisions  occurring  in 
consequence  of  the  darkness  of  the  night  and  without  fault  on  the 
part  of  either  party,  are  to  be  regarded  as  inevitable  accidents  are 
numerous. 

Where  the  loss  is  occasioned  by  a  storm  or  any  other  vis  major, 
the  rule  as  established  in  this  court  is,  that  each  party  must  bear  his 
own  loss,  and  the  same  rule  prevails  in  most  other  jurisdictions.  .  .  , 
Different  definitions  are  given  of  what  is  called  an  inevitable  acci- 
dent, on  account  of  the  different  circumstances  attending  the  collision 
to  which  the  rule  is  to  be  applied. 

Such  disasters  sometimes  occur  when  the  respective  vessels  are 
each  seen  by  the  other.  Under  those  circumstances,  it  is  correct  to 
say  that  inevitable  accident,  as  applied  to  such  a  case,  must  be  under- 
stood to  mean  a  collision  which  occurs  when  both  parties  have  en- 
deavored by  every  means  in  their  power,  with  due  care  and  caution, 
and  a  proper  display  of  nautical  skill,  to  prevent  the  occurrence  of 
the  accident.  When  applied  to  a  collision,  occasioned  by  the  darkness 
of  the  night,  perhaps  a  more  general  definition  is  allowable.  In- 
evitable accident,  says  Dr.  Lushington,  in  the  case  of  the  Europa, 
2  Eng.  Law  &  E.  559,  must  be  considered  as  a  relative  term,  and  must 
be  construed  not  absolutely,  but  reasonably  with  regard  to  the  cir- 
cumstances of  each  particular  case.  Viewed  in  that  light,  inevitable 
accident  may  be  regarded  as  an  occurrence  which  the  party  charged 
with  the  collision  could  not  possibly  prevent  by  the  exercise  of  ordi- 
nary care,  caution  and  maritime  skill. 

3.  Tests  of  Negligence.—  The  primary  question  is  whether 
there  has  been  a  violation  of  any  of  the  regulations  or  rules  of 
navigation.  Navigable  waters  constitute  a  common  highway  and 
the  rights  and  duties  of  vessels  using  them  are  quite  similar,  in 
legal  principles,  to  those  of  vehicles  using  streets,  and  roadways 
on  the  land.  Hence  the  general  maritime  law  recognized  the 
practice  of  keeping  to  the  right,  avoiding  others  whose  movements 
were  hampered,  and  not  running  down  another  because  he  was  on 
the  wrong  side.  Ultimately  the  general  practice  of  navigators 
was  expressed  in  formal  rules  and  finally  all  nations  united  in 
promulgating  them  in  the  form  of  statutes  which  are  now  prac- 
tically uniform  throughout  the  world.  They  are,  in  efifect,  a 
code  of  international  law  for  the  purpose  of  avoiding  collisions. 
Back  of  these  special  rules  are  the  general  requirements  of  the 
maritime  law  in  regard  to  careful  navigation ;  a  lookout  is  essen- 
tial although  there  is  no  statute  requiring  one  to  be  main- 
tained. 

It  should  be  observed  that  vessels  navigating  in  darkness,  fog 


I50  THE  LAW  OF  THE  SEA 

or  storm  must  take  all  precautions  against  collision  which  such  a 
state  of  things  would  suggest  to  a  prudent  navigator.  A  vessel 
failing  to  take  such  precautions  will  be  in  fault  in  a  collision. 
Failure  to  hear  fog  signals  is  not  negligence.  The  ordinary  steer- 
ing and  sailing  rules  do  not  apply  in  fog. 

4.  The  Regulations. —  The  express  rules  for  the  navigation  of 
vessels  of  the  United  States  consist  of  the  following: 

1.  International  Rules  (Act  of  Aug.  19,  1890,  as  amended; 
U.  S.  Comp.  St.  1916). 

2.  Rules  for  Great  Lakes  and  connecting  waters  (The 
"  White  Law  " ;  Act  of  February  8,  1895 ;  U.  S.  Comp.  St. 
(1916). 

3.  Rules  for  Harbors,  Rivers  and  Inland  Waters  (Act  of 
June  7,  1897;  U.  S.  Comp.  St.  1916). 

4.  The  Mississippi  Valley  Rules,  §  4233,  Revised  Statutes. 

5.  Rules  of  Supervising  Inspectors. 

6.  Local  rules  and  municipal  regulations. 

These  rules  deal  with  the  distinctive  lights  required  for  different 
vessels,  signals,  speed,  rules  governing  the  management  of  sailing 
and  steam  vessels  under  different  conditions  of  weather  and  vari- 
ous relative  positions  of  vessels.  While  they  have  very  often  been 
the  subject  of  judicial  interpretation  in  collision  cases  their  appli- 
cation belongs  to  the  subject  of  navigation  rather  than  to  that  of 
admiralty  law  in  the  present  work. 

The  statutory  rules  are  of  the  highest  importance  and  the  mere 
fact  of  a  breach  of  any  of  these  is  prima  facie  (but  not  conclu- 
sive) evidence  of  negligence.  The  infringing  vessel  must  satisfy 
the  court  that  its  violation  of  law  not  only  did  not,  but  could  not, 
contribute  to  the  collision. 

As  was  said  by  Chief  Justice  Fuller  in  Belden  v.  Chase,  150 
U.  S.  674: 

They  are  not  mere  prudential  regulations,  but  binding  enactments, 
obligatory  from  the  time  that  the  necessity  for  precaution  begins,  and 
continuing  so  long  as  the  means  and  opportunity  to  avoid  the  danger 
remains.  Obviously  they  must  be  rigorously  enforced  in  order  to 
attain  the  object  for  which  they  were  framed,  which  could  not  be 
secured  if  the  masters  of  vessels  were  permitted  to  indulge  their  dis- 
cretion in  respect  of  obeying  or  departing  from  them.  Nevertheless, 
it  is  true  that  there  may  be  extreme  cases  where  departure  from  their 


COLLISION 


151 


requirements  is   rendered   necessary  to  avoid   impending  peril,   but 
only  to  the  extent  that  such  danger  demands. 

Obedience  to  the  rules  is  not  a  fault  even  if  a  different  course  would 
have  prevented  the  collision,  and  the  necessity  must  be  clear  and  the 
emergency  sudden  and  alarming  before  the  act  of  disobedience  can 
be  excused.  Masters  are  bound  to  obey  the  rules  and  entitled  to  rely 
on  the  assumption  that  they  will  be  obeyed,  and  should  not  be  en- 
couraged to  treat  the  exceptions  as  subjects  of  solicitude  rather  than 
the  rules. 

It  is  true  that  where  obedience  to  the  rules  will  result  in  col- 
lision a  navigator  is  justified  in  disobeying  the  rule.  It  was  held 
in  the  Oregon,  158  U,  S.  186,  "  that  the  judgment  of  a  competent 
sailor  in  extremis  cannot  be  impugned."  Cases  in  which  disre- 
gard of  the  rules  has  been  upheld  as  justifiable  by  the  courts  have 
generally  been  cases  in  which  the  other  vessel  has  already  in- 
fringed a  rule  and  a  situation  has  arisen  in  which  obedience  to  the 
rule  could  only  result  in  collision.  Such  exceptions,  however,  as 
was  said  in  the  Albert  Dumois,  177  U.  S.  240,  "  are  admitted  with 
reluctance  on  the  part  of  the  courts,  only  when  the  adherence  to 
such  rules  must  almost  necessarily  result  in  a  collision  —  such, 
for  instance,  as  a  manifestly  wrong  maneuver  on  the  part  of  an 
approaching  vessel."  In  the  John  Buddie,  5  Notes  of  Cas.  387,  it 
was  said : 

All  rules  are  framed  for  the  benefit  of  ships  navigating  the  seas, 
and  no  doubt  circumstances  will  arise  in  which  it  would  be  perfect 
folly  to  attempt  to  carry  them  into  execution,  however  so  wisely 
framed.  It  is,  at  the  same  time,  of  the  greatest  possible  importance 
to  adhere  as  closely  as  possible  to  established  rules  and  never  to 
allow  a  deviation  from  them  unless  the  circumstances  which  are 
alleged  to  have  rendered  such  deviation  necessary  are  most  distinctly 
approved  and  established ;  otherwise,  vessels  would  always  be  in  doubt 
and  go  wrong. 

5.  Damage  to  Ship. —  The  owner  of  a  ship  wrongfully  injured 
by  collision  is  entitled  to  complete  restitution.  If  the  loss  is  total, 
he  recovers  her  value,  with  interest  from  the  date  of  the  loss.  If 
the  loss  is  partial,  he  will  recover  the  cost  of  full  and  complete 
repairs  and  if  such  repairs  make  the  vessel  a  better  and  stronger 
one  than  she  was  before,  he  is  entitled  to  that  benefit;  he  will  also 
recover  demurrage  or  compensation  for  the  loss  of  use  of  his  ship 
during  the  time  occupied  by  the  repairs. 

It  frequently  happens  that  the  ship  is  not  an  absolute  total  loss, 


152  THE  LAW  OF  THE  SEA 

in  the  sense  of  being  completely  destroyed  or  sunk  beyond  possi- 
bility of  recovery,  but  so  injured  that  the  cost  of  repair  will  exceed 
the  value  at  the  time  of  collision ;  the  owner  may  then  treat  her  as 
a  constructive  total  loss  and  claim  from  the  wrongdoer  the  same 
amount  as  if  the  destruction  had  been  complete.  In  other  words, 
when  the  ship  is  so  injured  that  a  prudent  business  man  would 
not  repair,  the  owner  abandons  the  wreck  and  claims  a  total  loss. 
If  he  recovers,  the  title  to  the  wreck  passes  to  the  wrongdoer.^ 

Expenses  incident  to  the  collision  are  also  included  in  the  ship's 
damage,  such  as  the  owner's  disbursements  in  looking  after  his 
property;  the  cost  of  protest  and  survey;  the  wages  and  board  of 
the  crew  while  necessarily  kept  on  board,  the  costs  of  superintend- 
ing repairs  and  securing  a  new  rating. 

Loss  of  freight  is  also  an  item  of  damage. 

6.  Damage  to  Cargo. —  The  cargo-owner  is  entitled  to  recover 
his  damages  from  the  offending  ship  and  the  ordinary  measure  is 
the  value  of  the  goods  at  the  time  and  place  of  a  total  loss,  with 
interest  and  incidental  expenses.  The  purpose  of  the  rule  is  to 
place  him,  as  nearly  as  may  be,  in  the  same  position  as  if  the  col- 
lision had  not  occurred.  Where  the  loss  is  partial,  as  where  the 
goods  arrive  in  a  damaged  condition,  the  measure  is  the  difference 
between  their  actual  value  and  what  they  would  have  been  worth 
in  good  condition ;  to  this  may  be  added,  in  appropriate  cases,  the 
expenses  of  transhipment,  reconditioning,  warehousing,  survey 
and  sale. 

Where  both  vessels  are  in  fault  the  owner  of  the  cargo  may  sue 
either  or  both,  or  as  was  said  by  Justice  Clifford  in  the  Atlas, 
3  Otto  302: 

Parties  without  fault  such  as  shippers  and  consignees,  bear  no  part 
of  the  loss  in  collision  suits,  and  are  entitled  to  full  compensation  for 
the  damage  which  they  suffer  from  the  wrongdoers,  and  they  may 
pursue  their  remedy  in  personam,  either  at  common  law  or  in  the  ad- 
miralty, against  the  wrongdoers  or  any  one  or  more  of  them,  whether 
they  elect  to  proceed  at  law  or  in  the  admiralty  courts. 

Innocence  entitled  the  loser  to  full  compensation  from  the  wrong- 
doer, and  it  is  a  good  defense  against  all  claims  from  those  who  have 

2  In  modern  practice,  insurance  is  nearly  always  carried  upon  a  vessel 
and  cargo.  The  modern  authorities  on  the  subject  of  constructive  or  total 
loss  and  abandonment,  as  well  as  the  items  of  damage  recoverable  on  ac- 
count of  vessel  and  cargo  are,  in  nearly  every  instance,  cases  arising  out 
of  policies  of  marine  insurance.  This  subject  is  treated  at  large  in  an- 
other volume  of  this  series. 


COLLISION  153 

lost.  Individual  fault  renders  the  party  liable  to  the  innocent  loser, 
and  is  a  complete  answer  to  any  claim  made  by  the  faulty  party,  ex- 
cept in  case  where  there  is  mutual  fault,  in  which  case  the  rule  is 
that  the  combined  amount  of  the  loss  shall  be  equally  apportioned 
between  the  offending  vessels. 

In  the  foregoing  case  the  owner  of  a  cargo,  lost  in  a  collision  in 
which  both  vessels  were  held  to  be  at  fault,  libeled  one  of  them  and 
decreed  his  entire  damage  against  the  vessel  which  he  sued.  A 
vessel  so  compelled  to  pay  the  whole  damage  to  cargo,  in  a  case  of 
mutual  fault,  is  entitled  to  recover  from  the  other  vessel  a  contri- 
bution so  as  to  equalize  the  loss  as  between  the  two  ships. 

But  this  important  qualification  of  the  foregoing  rule  must  be 
observed :  That  a  shipper  of  cargo  who  is  prevented  from  re- 
covering against  the  vessel  on  which  his  cargo  was  shipped,  as 
for  instance  by  his  contract  of  affreightment,  or  by  some  rule  of 
law,  as,  for  example  (in  an  applicable  case),  the  Harter  Act, 
cannot  hold  the  other  vessel  for  the  entire  damage  but  only  for 
one-half  thereof. 

In  the  case  of  the  Niagara,  J'j  Fed.  329,  the  steamer  Niagara 
was  in  collision  with  the  bark  Hales,  the  Court  held : 

Both  vessels  being,  therefore,  in  fault,  the  owners  of  the  bark  are 
entitled  to  recover  against  the  Niagara  one-half  their  damages  for 
the  loss  of  the  bark,  to  be  applied  so  far  as  may  be  legally  applicable 
and  necessary  in  payment  of  the  value  of  one-half  of  the  cargo 
claimed  under  the  other  libel ;  and  the  Niagara  is  liable  for  any  de- 
ficiency to  make  good  the  whole  value  of  the  cargo  owners;  as  well 
as  for  one-half  the  claims  for  personal  effects, 

•  •••«•••••• 

If  the  Harter  Act,  however,  were  applicable,  it  would  not  affect 
the  liability  of  the  Niagara  in  the  present  case;  but  only  the  applica- 
tion, as  between  the  shipowner  and  the  owners  of  the  cargo,  of  the 
sum  the  Niagara  must  pay.  The  Niagara  suffered  but  little  damage ; 
while  the  loss  of  the  Hales,  and  of  the  cargo,  are  estimated  to  have 
been  respectively  about  $16,000  and  $26,000.  In  applying  the  Harter 
Act  to  cases  of  division  of  damages  for  mutual  fault,  I  have  hereto- 
fore held  (1)  that  it  was  not  the  intent  of  Congress  to  relieve  the 
carrier  vessel  at  the  expense  of  the  other  vessel  in  fault,  by  increas- 
ing the  latter's  liability,  but  that  the  intent  was  that  the  cargo  should 
bear  the  consequences  of  the  carrier's  neglect  in  navigation;  (2)  that 
the  relief  given  by  the  Act  to  the  carrier  vessel  from  responsibility 
for  damage  to  her  cargo,  could  not  be  nullified  indirectly  by  a  charge 
against  her  in  the  shape  of  an  offset  in  favor  of  the  other  vessel  in 
fault  on  account  of  that  same  cargo;  (3)  that  the  extent  of  the  lat- 


154  THE  LAW  OF  THE  SEA 

ter  vessel's  previous  liability  on  the  particular  facts  of  each  case  was 
not  to  be  diminished  by  the  Harter  Act  from  what  she  would  pre- 
viously have  been  bound  to  pay,  except  as  respects  her  own  cargo; 
and  (4)  that  the  result,  therefore,  must  be  that  the  cargo  owner 
of  each  ship  must  stand  charged  under  the  Harter  Act  with  so  much 
of  the  cargo  damage  as  the  carrier  ship  is  relieved  from  by  that 
Act,  whenever  and  so  far  as  that  is  necessary  to  avoid  any  in- 
crease in  the  previous  liability  of  the  other  ship.  The  Viola,  60  Fed. 
296. 

Upon  any  complication,  the  first  inquiry  is,  to  what  amount  was  each 
vessel,  or  her  owner,  liable  under  the  previous  law,  upon  the  par- 
ticular facts  of  the  case?  Under  the  Harter  Act,  if  it  is  applicable, 
that  liability  cannot  be  exceeded,  and  it  will  remain  the  same,  if 
necessary  to  make  good  the  damage  to  the  cargo  of  the  other  ship. 
In  getting  at  the  am.ount  which  either  vessel  is  to  pay  under  the 
Harter  Act,  her  own  cargo  is  to  be  treated  as  nonexistent;  because 
where  the  Harter  Act  is  operative  the  carrier  vessel  (A)  is  not  liable 
for  that  item  of  damage.  But  the  other  ship  (B)  is  bound  to  pay 
that  item  of  cargo  loss,  as  well  as  one-half  the  damage  to  the  two 
ships,  up  to  the  limit  previously  ascertained,  as  above  stated,  if  the 
remaining  value  of  the  ship  (B)  and  her  pending  freight  are  suf- 
ficient for  that  purpose.  Where  this  value  is  not  sufficient,  and  the 
damage  to  the  first  vessel  (A)  is  greater  than  the  damage  to  the 
other  ship  (B),  two  conflicting  claims  arise,  one  in  favor  of  the 
ship  (A),  for  the  purpose  of  equalizing  the  loss  on  the  two  vessels,  and 
another  claim  for  the  loss  on  A's  cargo.  As  those  claims  arise  at  the 
same  time,  and  are  of  equal  merit,  the  remaining  value  of  the  ship  B 
and  her  pending  freight  should  be  apportioned  pro  rata,  according 
to  the  amount  of  the  two  claims. 

In  the  present  case  the  Hates'  loss  was  about  $16,000;  that  of  her 
cargo  about  $26,000.  The  loss  on  the  Niagara  was  slight,  and  of  her 
cargo,  nothing.  Before  the  Harter  Act,  the  Niagara,  upon  the  above 
figures,  would  have  been  obliged  to  pay  $8,000  for  half  the  loss  of 
the  Hales  (which  would,  however,  have  been  applied  upon  the  latter's 
liability  to  her  cargo)  ;  $13,000  for  half  the  cargo  loss,  and  $5,000  in 
addition,  on  account  of  the  total  loss  of  the  Hales,  in  order  fully  to 
indemnify  the  cargo,  making  $26,000  in  all  (The  Atlas,  93  U.  S. 
302).  Under  the  Harter  Act,  the  Hales  being  relieved  from  any 
liability  to  her  cargo  for  this  damage,  her  owners  would  retain  the 
$8,000  for  their  own  use,  instead  of  applying  it  on  the  cargo  as 
before;  but  the  Niagara's  liability  is  not  to  be  thereby  increased  or 
diminished.  This  item  of  loss  is  transferred  by  the  Harter  Act  to 
the  cargo.  The  Niagara  must  pay,  therefore,  as  before,  $13,000,  and 
the  $5,000  (that  is,  $18,000),  on  account  of  the  cargo  loss,  and  the 
cargo-owner  loses  the  $8,000,  which  his  carrier  under  the  Harter  Act 
is  entitled  to  retain.  It  is  immaterial,  therefore,  to  the  Niagara 
whether  the  Harter  Act  is  applicable  or  not.  It  affects  only  the  dis- 
tribution of  the  $26,000. 


COLLISION 


155 


7.  Damage  to  Crew  and  Passengers.—  Personal  belongings  of 
crew  and  passengers  may  be  lost  or  injured  in  the  collision  and 
the  measure  of  damages  is  the  same  as  in  the  case  of  the  cargo. 
If  totally  lost,  the  value  at  the  time  of  the  collision  governs  not 
what  the  articles  originally  cost  when  new.  If  only  injured,  then 
the  difference  between  sound  and  damaged  condition  controls. 
Interest  follows  as  in  other  cases. 

Personal  injuries  and  loss  of  life  are  also  included  in  collision 
damage.  The  measure  here  is  the  same  as  in  similar  matters  on  land. 

8.  Contribution. —  The  59th  Rule  in  Admiralty  provides  that 
the  claimant  of  any  vessel  proceeded  against,  or  any  respondent 
proceeded  against  in  personam  may  bring  in  a  petition  alleging 
fault  in  any  other  vessel  contributing  to  the  collision,  and  praying 
that  such  other  vessel  be  made  a  party  to  the  suit.  The  other  par- 
ties to  the  suit  are  to  answer  the  petition  and  the  vessel  or  party 
newly  brought  in  shall  answer  the  libel.  This  brings  in  both  ves- 
sels, provided  the  vessel  so  brought  in  is  within  the  jurisdiction  of 
the  court  and  can  be  reached  by  its  process,  and  makes  it  possible 
for  the  court  to  enforce  appropriate  contribution  of  damage  by 
the  parties  in  fault. 

Since  we  have  already  seen  that,  in  a  case  in  which  both  vessels 
are  in  court  in  the  first  place,  the  court  will  decree  contribution, 
there  remains  only  the  case  in  which  a  claimant  of  lost  cargo  has 
brought  suit  against  one  vessel  or  her  owner,  and  the  other  vessel 
cannot  be  reached  by  process  of  the  court.  Suppose  that  in  such 
a  case  the  cargo-owner  gets  a  decree  against  the  vessel  or  party 
defendant  and  for  his  full  damage,  can  the  vessel  or  the  party 
thus  mulcted  maintain  an  independent  suit  for  contribution  against 
the  other  offending  ship?  It  can  only  be  said  that  on  this  point 
the  authorities  are  in  direct  conflict ;  however,  in  the  modern  case 
of  Lehigh  Valley  R.  R.  Co.  v.  Cornell  Steamboat  Co.,  218  U.  S. 
264,  it  seems  to  be  clearly  inferable  that  in  the  opinion  of  the 
Supreme  Court  of  the  United  States  such  an  action  is  main- 
tainable. 

What  has  been  said  with  respect  to  damage  suffered  by  owners 
of  lost  cargo,  applies  equally  to  damages  for  personal  injuries 
sustained  as  the  result  of  a  collision. 

9.  Division  of  Damages. —  Where  both,  or  several,  ships  are 
in  fault,  the  maritime  law  apportions  the  damage  between  them. 
When  one  of  two  vessels  has  suffered  more  than  the  other  the 


156  THE  LAW  OF  THE  SEA 

decree  is  against  the  one  least  injured  for  one-half  of  the  difference 
in  their  respective  losses.  In  the  North  Star,  io6  U.  S.  17,  where 
both  vessels  were  adjudged  in  fault  for  a  collision  and  one,  the 
Ellis  Warlcy,  became  a  total  loss,  the  owners  of  the  Warley  ad- 
vanced the  ingenious  argument  that,  inasmuch  as  their  vessel 
had  been  entirely  lost,  they  were  entitled  to  limit  their  liability 
and,  by  so  doing,  recover  one-half  their  entire  damage  from  the 
North  Star,  without  any  deduction  for  the  damage  suffered  by 
her,  notwithstanding  the  rule  of  division  of  damage  in  such  cases. 
It  will  be  noticed  that  the  vessel  claiming  the  right  to  limit  lia- 
bility, being  the  greater  sufferer,  would,  in  no  event,  have  been 
required  to  pay  anything  to  the  other,  and  that  the  North  Star, 
which  had  to  do  the  paying,  did  not  claim  any  right  to  limit  lia- 
bility. In  rejecting  this  argument  and  holding  that  the  time  to 
apply  the  limitation-of-liability  rule  was  after  the  amount  of  the 
liability  had  been  ascertained,  when  the  party  decreed  to  pay 
might  claim  the  benefit  of  the  rule  if  entitled  to  it,  the  Court  en- 
tered upon  an  instructive  review  of  the  entire  history  of  the  divi- 
sion of  damage,  and  found  that  the  theory  is  not  that  the  owner 
of  the  one  vessel  is  liable  to  the  owner  of  the  other  for  one-half 
of  the  damage  sustained  by  the  latter,  and  vice  versa,  that  the 
owners  of  the  latter  are  liable  to  those  of  the  former  for  one-half 
of  the  damage  sustained  by  her ;  but  that  the  joint  damage  is 
equally  divided  between  the  parties  ;  that  it  is  a  case  of  average  and 
is  to  be  computed  by  subtracting  the  lesser  loss  from  the  greater, 
dividing  the  difference  by  two  and  directing  the  vessel  sustaining 
the  smaller  loss  to  pay  the  other  the  amount  so  found. 

Where  both  vessels  are  in  fault  and  only  one  is  injured,  the  un- 
injured vessel  must  pay  to  the  other  one-half  of  the  amount  of 
her  damage  without  deduction. 

The  cargo,  being  innocent,  may  sue  both  vessels  or  either,  but 
if  the  result  is  that  one  is  so  compelled  to  pay  more  than  its  proper 
proportion  of  the  total,  a  suit  for  contribution  under  the  condi- 
tions set  forth  in  the  preceding  section  will  lie  in  order  to  accom- 
plish an  ultimate  equality.  The  admiralty  does  not  recognize  the 
common-law  rule  that  contributory  negligence  prevents  recovery 
and  the  same  division  or  apportionment  of  damage  is  applied  to 
cases  of  personal  injury  in  collision  as  otherwise. 

10.  Lien. —  The  party  injured  by  collision  acquires  a  maritime 
lien  of  high  rank  upon  the  guilty  vessel  which  attaches  at  the  mo- 


COLLISION  157 

ment  the  damage  is  done  and  inheres,  as  a  property  right,  until  it 
is  satisfied,  bonded,  or  extinguished  by  an  admiralty  sale,  or  aban- 
doned by  his  own  laches,  or  delay  in  enforcement.  It  attaches 
to  the  hull  of  the  ship  and  also  to  her  engines,  boilers,  boats,  ap- 
parel and  freight  pending  but  not  to  her  cargo  aiid,  equally, 
whether  the  oflFending  ship  was  in  actual  contact  with  the  other 
or  whether  she  caused  the  collision  between  other  ships  by  her 
own  negligent  navigation,  as  by  suction  or  displacement  waves. 
The  lien  will  follow  the  ship  into  the  hands  of  an  innocent  pur- 
chaser for  value  unless  proceedings  to  enforce  it  have  been  un- 
reasonably delayed  or  other  circumstances  render  its  enforcement 
inequitable.  It  has  priority  over  almost  all  other  maritime  liens, 
only  subsequent  salvage  and  wages  being  ordinarily  preferred. 

Since  the  enactment  of  the  act  of  March  30,  1920,  a  lien  arises 
out  of  the  loss  of  life  in  a  collision,  as  in  the  case  of  personal 
injuries. 

11.  Limitation  of  Liability. —  Where  the  owner  of  the  offend- 
ing vessel  is  not  personally  at  fault  for  the  disaster,  his  liability 
is  limited  to  the  value  of  his  ship  an.d  freight  pending,  as  of  imme- 
diately after  the  disaster.  If  the  ship  is  lost,  his  liability  disap- 
pears with  her.  He  is  not,  under  American  law,  obliged  to  ac- 
count for  the  insurance  because  that  is  not  a  part  of  the  ship  but 
the  result  of  an  independent,  collateral  contract. 

12.  Remedies. —  The  most  usual  remedy  employed  in  cases  of 
collision  is  that  afforded  by  the  Limited  Liability  Law.^  This 
gives  the  shipowner  the  right  to  call  all  damage  claimants  into  one 
court  and  dispose  of  everything  in  a  single  proceeding,  thus  elimi- 
nating a  multiplicity  of  suits  in  different  jurisdictions.  The  ques- 
tion of  fault  may  be  litigated  in  this  proceeding  and  it  may  be 
commenced  either  before  or  after  the  commencement  of  other 
actions.  Injured  parties,  if  they  choose,  may  sue  at  common  law 
as  in  other  cases  of  negligence.  The  more  effective  remedies, 
however,  are  in  admiralty.  They  may  there  proceed  directly 
against  the  ship,  or  the  ship  and  master  together,  or  against  the 
master  or  the  owner  alone,  personally.  The  master  of  the  injured 
ship  may  bring  the  suit  in  his  own  name  on  behalf  of  all  con- 
cerned, including  the  cargo.  Underwriters  who  have  paid  for 
losses  caused  by  collision  become  subrogated  to  the  rights  of  their 
assured  and  may  sue  accordingly. 

s  See  Chapter  VIII,  supra. 


158  THE  LAW  OF  THE  SEA 

13.  Evidence. —  The  party  alleging  negligence  must  bear  the 
burden  of  proof  in  establishing  it.  He  must  show  fault  on  the 
part  of  the  other  vessel  as  well  as  due  care  on  his  own.  By  act 
of  Congress,  approved  September  4,  1890  (26  St.  at  L.  425),  the 
so-called  *'  Stand-By  "  act,  failure  of  a  vessel  to  stay  by  another 
vessel  with  which  she  has  been  in  collision  until  there  is  no  further 
need  of  assistance,  raises  the  presumption  that  she  is  in  fault  for 
the  collision.  This  presumption,  however,  is  not  conclusive,  but 
may  be  rebutted  by  testimony.  Cases  of  this  kind  appear  to  be 
inconsistent  with  the  doctrine  laid  down  in  some  of  the  earlier 
decisions  and  represent  a  modern  tendency  to  extend  the  maritime 
jurisdiction.  Sometimes  the  conceded  facts  establish  a  presump- 
tion of  fault,  as  where  a  collision  occurs  with  a  ship  properly  at 
anchor  or  between  steam  and  sail.  This  will  usually  appear  on  the 
pleadings.  The  facts  at  issue  are  shown  by  the  testimony  of  those 
who  saw  or  participated  in  the  disaster.  These  generally  come 
from  the  officers  and  crews  of  the  vessels  involved  and  every  man 
ought  to  be  accounted  for.  Extreme  contradictions  are  to  be  ex- 
pected in  the  evidence  as  there  is  a  natural  tendency  on  the  part 
of  sailors  and  passengers  to  be  so  loyal  to  their  own  ship  as  to 
impute  every  fault  to  the  one  which  runs  into  her.  The  courts 
seldom  attempt  to  reconcile  conflicting  testimony  but  frequently 
decide  on  the  conceded  facts  and  probabilities.  The  evidence  of 
disinterested  parties  is  of  much  weight. 

REFERENCES  FOR  GENERAL  READING 

Law  of  Marine  Collisions,  H.  R.  Spencer.     Chicago,  1895 ;  Callaghan 

&  Co. 
Collisions  at  Sea,  R.  G.  Marsden.     London,  1904;  Stevens  and  Sons, 

Ltd. 
Damages  in  Maritime  Collisions,  E.  S.  Roscoe.    London,  1909;  But- 

terworth  &  Co. 
Admiralty  Law,  8  Columbia  Law  Review  (March,  1908). 
Scotia,  14  Wall.  170. 
Belgenland,  114  U.  S.  355. 


CHAPTER  XII 
TOWAGE  AND  PILOTAGE 

1.  Definition. —  Towage  is  the  service  rendered  by  one  vessel 
to  another  in  moving  her  from  point  to  point  under  ordinary  cir- 
cumstances of  navigation.  Pilotage  is  the  navigation  of  a  vessel 
by  one  having  special  knowledge  of  the  waters,  as  pilot. 

2.  Towage  Service. —  This  is  rendered  by  the  tug  to  the  tow. 
Tugs  are  usually  specially  built  and  equipped  for  the  business  and 
supply  a  very  important  aid  to  commerce  and  navigation.  The 
service  is  generally  by  contract  or  informal  agreement  and  includes 
both  the  short  work  in  shifting  vessels  in  port  and  the  long  voyage 
and  season  contracts  along  the  coast  and  in  the  canals  and  Great 
Lakes.  It  may  be  performed  in  various  ways.  Sometimes  the 
tug  is  lashed  to  the  tow  and  supplies  motive  power  only  and  some- 
times she  pulls  several  vessels  behind  her  upon  hawsers  from  each 
to  the  other  of  great  length.  The  legal  relations,  however,  are 
usually  the  same. 

The  tug  should  be  supplied  with  hawsers  of  sufficient  strength 
to  hold  the  tow  in  any  weather  which  may  be  reasonably  antici- 
pated, unless  the  tow  itself  supplies  them.  Where  the  tug  is 
given  full  control,  it  should  arrange  the  order  of  towage  and  the 
distances  apart.  It  should  also  arrange,  by  an  understood  code 
of  signals,  for  shortening,  lengthening,  or  casting  off  the  lines, 
as  exigencies  of  navigation  may  require.  Vessels  of  heavy  draft  • 
should  be  placed  behind  those  of  lighter  draft.  The  speed  of  the 
tug  should  be  such  as  is  reasonably  safe  for  the  condition  of  the 
tow  and  sudden  jerks  and  turns  must  be  avoided.  Disaster  does 
not  necessarily  absolve  the  contract  of  towage.  On  the  contrary, 
it  is  quite  settled  that  it  is  the  duty  of  the  tug  to  continue  to  do  all 
in  its  power  to  get  its  tow  out  of  situations  of  difficulty  and  danger, 
short,  of  course,  of  sacrificing  its  own  safety.  It  is  not  relieved 
from  its  obligation  because  unexpected  difficulties  occur  and  may 
not  lightly  abandon  the  tow  to  its  fate.  Extraordinary  services 
under  a  towage  contract  may  secure  a  salvage  reward,  but  too 
great  haste  in  abandoning  it  will  impose  a  corresponding  liability. 

159 


i6o  THE  LAW  OF  THE  SEA 

3.  Compensation. —  The  rate  of  compensation  is  determined 
by  express  contract,  or  in  the  absence  of  such  contract  by  the 
customary  rates  prevailing  in  the  port  or  locaHty,  and  in  the  ab- 
sence of  contract  or  custom  by  the  fair  value  of  the  service  ren- 
dered. Unless  the  service  performed  amounts  to  a  case  of  salvage 
the  compensation  will  not  be  determined  by  the  rules  governing 
salvage.  Towage  services  are  presumptively  a  maritime  lien  on 
the  tow,  and  where  the  owners  of  the  tow  contend  that  the  service 
was  performed  upon  their  personal  credit,  instead  of  upon  that  of 
the  vessel,  they  must  affirmatively  establish  that  fact  (Erastina,  50 
Fed.  126).  The  lien  for  towage  and  pilotage  is  in  general  su- 
perior to  all  liens  except  those  for  salvage  and  seamen's  wages 
and  "  preferred  mortgages  "  given  on  American  ships  pursuant  to 
the  Merchant  Marine  Act  of  1920  (see  Appendix).  Thus  the 
Court  in  the  Mystic,  30  Fed.  'j'})^  said : 

I  am  of  the  opinion  that  this  claim  of  towage  is  and  should  be  con- 
sidered a  maritime  lien  upon  the  schooner.  It  is  a  conceded  fact  in 
this  case  (and  if  it  were  not,  probably  the  court  would  take  notice  of 
the  usual  course  of  maritime  business  in  this  port)  that  all  vessels 
entering  and  leaving  the  port  of  Chicago  are  required  by  the  ordi- 
nances of  this  city  to  do  so  in  the  tow  of  a  tug;  and  the  usual  course 
of  business  is  for  the  tug  to  take  vessels  in  tow  at  some  point  outside 
of  the  entrance  to  the  harbor,  and  tow  them  to  the  dock  to  which 
they  are  consigned.  This  class  of  service  takes  the  place  of  the  labor 
of  the  crew,  and  I  can  see  no  reason  why  it  is  not  to  be  treated  as 
next  in  rank,  if  not  in  the  same  order  of  priority,  as  seamen's  wages. 
It  is  probably,  however,  more  analogous  in  the  nature  of  the  service 
to  pilotage,  as  the  use  of  the  tug  dispenses  with  the  necessity  of  a 
pilot  to  bring  the  vessel  into  the  harbor  and  take  her  to  her  dock; 
and  by  such  analogy  ought  undoubtedly  to  be  subordinate  to  the  sea- 
men's wages.  The  court  must  take  notice  of  the  fact,  that  by  the 
introduction  of  steam  even  sailing  vessels  have  become  largely  de- 
pendent upon  tugs  and  towing  vessels  to  take  them  into  and  out  of 
harbors;  and  this  is  specially  necessary  in  a  harbor  like  that  of  this 
city  where  there  are  long  devious  channels  which  can  only  be  threaded 
by  the  aid  of  a  tug,  or  the  almost  impracticable  means  of  warping. 

4.  Duty  of  Tug. —  The  tug  is  not  a  carrier  as  to  the  tow  but 
only  a  bailee.  This  means  that  it  is  not  liable  for  accidents  except 
as  it  is  proved  to  have  been  negligent  or  wanting  in  ordinary  care. 
While  the  relation  depends  on  contract,  the  obligations  are  mostly 
those  implied  by  law  from  the  relations  of  the  parties  although 
they  may  vary  them  as  they  please  by  express  agreement.     In  gen- 


TOWAGE  AND  PILOTAGE  i6i 

eral,  the  tug  engages  to  make  the  trip  or  voyage  without  delay  or 
deviation  or  undue  peril ;  to  be  sufficiently  equipped  and  manned 
and  in  all  respects  seaworthy ;  to  exercise  reasonable  diligence  and 
the  ordinary  skill  of  the  profession ;  in  case  of  storm  or  danger,  to 
protect  the  tow,  by  seeking  a  port  of  refuge,  or  slowing,  stopping, 
sounding,  and  otherwise  exercising  due  care,  until  the  occasion 
subsides.  She  is,  however,  only  bound  to  do  what  is  consistent 
with  her  own  safety  and  may,  therefore,  abandon  the  tow  when 
circumstances  of  great  peril  require  it.  The  tug  is  bound  to  see 
that  the  tow  is  properly  made  up  for  the  proposed  voyage ;  to 
know  the  sailing  qualities  of  the  vessels  in  charge  and  the  charac- 
ter of  the  waters,  currents,  harbors  and  shoals  before  them. 

If  the  tow  furnishes  its  own  hawsers  or  towing  lines,  it  must 
see  to  it  that  they  are  sufficient  for  all  the  purposes  of  the  voyage 
and  that  they  are  properly  fastened  on  board.  There  is  an  im- 
plied representation  of  seaworthiness  in  offering  a  vessel  to  be 
towed  and  the  tug  has  the  right  to  assume  that  the  ship  is  suffi- 
ciently staunch  and  equipped  for  the  voyage  proposed.  Thus  in 
the  case  of  the  Syracuse,  i8  Fed.  828,  it  was  said  that: 

Justice  requires  that  the  continued  running  of  old  boats  should  be 
closely  scrutinized  and  their  owners  should  not  be  suffered  to  conceal 
their  infirm  condition,  and,  when  accidents  happen,  get  them  repaired 
or  recover  as  for  a  total  loss,  at  the  expense  of  others.  The  owner 
is  bound  to  give  notice  of  any  infirmity  about  his  boat.  If  she  be  not 
staunch  and  strong;  and  where  this  is  not  done  he  must  be  held 
jointly  or  solely  responsible  for  such  injuries  as  the  present;  accord- 
ing to  the  other  circumstances  of  the  case. 

The  tow  must  not  be  overloaded  or  improperly  steered.  The 
obligations  of  the  contract  are  largely  mutual  and  correlative  for 
generally  the  tow  is  largely  under  the  control  of  her  own  company 
and  the  tug  is  furnishing  motive  power  and  guidance  only.  Each 
party  to  the  contract  is  bound  to  do  its  part  towards  completing  it 
and  each  vessel  involved  must  use  proper  skill  and  diligence  in 
performing  its  part.  The  tow  is  not  insured  against  damage  be- 
cause the  tug  has  taken  it  in  charge.  It  must  not  create  unneces- 
sary risk,  or  increase  any  perils  by  neglect  or  mismanagement. 
The  obligations  of  good  seamanship  remain  on  the  tow  and  it  is 
bound  to  be  vigilant  and  prompt  in  meeting  them.  In  illustration 
of  these  principles  one  or  two  cases  may  be  noticed :  In  the 
Marie   Palmer,    191    Fed.   79,   the   four-masted   schooner   Marie 


i62  THE  LAW  OF  THE  SEA 

Palmer,  bound  from  a  northern  port  to  Savannah  with  cargo,  en- 
countered heavy  weather  off  Cape  Hatteras  and  put  into  a  North 
Carolina  port,  where  it  was  found  by  a  board  of  survey  that  she 
was  leaking  but  could  proceed  under  tow,  and  the  tug  Edgar  F. 
Coney  was  employed  to  take  her  to  Savannah  for  an  agreed  price. 
The  vessels  started  on  a  clear  day  with  a  light  breeze  and  had  pro- 
ceeded 85  miles  when,  shortly  after  dark,  the  schooner  stranded 
on  Frying  Pan  Shoals  and  became  a  total  loss.  The  schooner, 
shortly  prior  to  stranding,  asked  the  tug  if  they  were  not  too  far 
in  shore,  but  was  answered  in  the  negative.  The  navigator  mis- 
took the  Cape  Fear  light  for  a  gas  buoy  shown  on  the  chart,  al- 
though the  two  were  entirely  different  in  height  and  character, 
and  were  fourteen  miles  apart.  There  was  a  deviation  in  the 
tug's  compass  and  the  card  for  its  correction  was  not  at  hand. 
The  master  of  the  schooner  libeled  the  tug.     The  Court  said : 

Now  it  is  true  that  under  a  contract  of  towage,  the  owner  of  the 
vessel  towing  does  not  insure  against  marine  perils.  It  is  true,  how- 
ever, that  he  must  obey  the  law,  and,  in  the  protection  of  the  life  and 
property  intrusted  to  his  sole  control,  he  must  exercise  that  degree 
of  caution  and  skill  which  navigators  of  prudence  usually  employ  in 
such  service.  He  is  held  bound  to  know  the  waters,  the  channels, 
well-defined  currents,  and  such  well-defined  shoals  as  have  been  for 
a  sufficient  length  of  time  marked  by  the  government,  and  all  other 
dangers  known  generally  to  men  experienced  in  navigation;  and  he 
is  bound  to  exercise  such  skill  and  knowledge  for  the  protection  of 
her  tow.  .  .  . 

It  is  true  that,  under  ordinary  circumstances,  damage  to  a  vessel 
while  being  towed  raises  no  presumption  of  fault  on  the  part  of  the 
vessel  towing;  but,  where  the  evidence  preponderates  to  show  such 
negligence,  it  may  be  found  to  exist,  although  no  presumption  is 
allowed  in  favor  of  the  tow.  It  has,  however,  been  held  by  the  Su- 
preme Court  of  the  United  States  in  the  Webb,  14  Wall.  406,  that 
under  certain  circumstances,  if  a  ship  is  towed  upon  a  shoal,  that  the 
fact  of  stranding  at  such  place  would,  in  the  absence  of  explanation 
"be  almost  conclusive  evidence  of  unskillfulness  or  carelessness  in 
the  navigation  of  the  tug.  The  place  where  the  injury  occurred 
would  be  considered  in  connection  with  the  injury  itself,  and  together 
they  would  very  satisfactorily  show  a  breach  of  the  contract,  if  no 
excuse  were  given.  At  least  they  would  be  sufficient  to  cast  upon  the 
claimants  of  the  tug  the  burden  of  establishing  some  excuse  for  the 
deviation  from  the  usual  and  proper  course." 

In  the  case  now  under  consideration  the  compass  of  the  tug  was 
inaccurate.  The  card  showing  the  deviation  was  not  kept  before  the 
helmsman.     The  course  was  plainly  marked  and  widely  known.     The 


TOWAGE  AND  PILOTAGE  163 

tug  and  tow  starting  early  in  the  morning  proceeded,  until  the  strand- 
ing, but  85  miles  only.  Frying  Pan  Shoals  is  not  less  widely  known 
than  any  other  on  the  coast.  The  captain  of  the  tug,  Myers,  laid  the 
course,  as  he  testifies,  for  the  buoy.  He  might  have  passed  it  in 
safety  anywhere  within  a  mile  to  the  landward,  and,  in  a  practical 
sense,  anywhere  to  the  seaward.  He  wrecked  his  tow  ^Yz  miles  to 
the  landward  of  the  buoy,  and  1^/2  miles  from  the  Cape  Fear  Light, 
which  he  may  have  mistaken  for  the  buoy.  There  was  no  sudden 
exigency  to  divert  the  judgment.  There  was  abounding  opportunity 
to  take  the  bearings  of  the  lights,  and  to  make  soundings.  The 
stranding  itself  occurred  shortly  after  dark  only,  in  the  evening  of  a 
clear  day,  and  shortly  after  the  master  of  the  tug  had  received  from 
the  master  of  the  tow  urgent  and  explicit  warning  of  the  danger. 
If  under  these  conditions,  as  we  find  them  to  exist,  there  is  no  lia- 
bility on  the  tug,  which  in  obedience  to  the  official  finding  of  the  sur- 
veyors was  voluntarily  towing  the  schooner  to  her  port  of  destination 
for  the  agreed-upon  compensation,  a  case  which  would  warrant  a 
finding  of  liability  for  similar  service  or  any  default  seems  wholly 
inconceivable. 

In  the  case  of  the  tug  Quickstep,  9  Wall.  665,  the  owner  of  the 
canal  boat  Citizen  filed  a  libel  in  rem  against  the  tug,  alleging  that 
the  tug  attempted  to  tow  too  many  loaded  boats  and  in  conse- 
quence of  which  one  of  the  boats  broke  loose,  and  the  tug  while 
backing  in  an  attempt  to  pick  her  up  collided  with  and  sank  the 
Citizen. 

The  inquiry  is:  Who  is  to  blame  for  this?  Clearly  not  the  Citi- 
zen, for  it  does  not  appear  that  her  conduct  in  any  way  contributed 
to  the  accident.  If  the  tug,  in  constructing  the  tow,  used  the  lines 
furnished  by  the  different  boats,  yet  as  each  boat  was  independent  of 
the  other,  no  responsibility  can  attach  to  either  for  the  breaking  of 
the  line,  which  she  did  not  provide,  and  had  nothing  to  do  with  mak- 
ing fast.  In  this  case  neither  the  bridle  line  nor  the  line  that  first 
parted  were  supplied  by  the  Citizen,  and  she  ought  not  to  suffer  for 
their  insufficiency.  It  is  well  settled  that  canal-boats  and  barges  in 
tow  are  considered  as  being  under  the  control  of  the  tug,  and  the 
latter  is  liable  for  this  collision,  unless  she  can  show  it  was  not  occa- 
sioned by  her  fault. 

It  was  the  duty  of  the  tug,  as  the  captains  of  the  canal-boats  had 
no  voice  in  making  up  the  tow,  to  see  that  it  was  properly  constructed, 
and  that  the  lines  were  sufficient  and  securely  fastened.  This  was  an 
equal  duty,  whether  she  furnished  the  lines  to  the  boats,  or  the  boats 
to  her.  In  the  nature  of  the  employment,  her  officers  could  tell  better 
than  the  men  on  the  boats  what  sort  of  a  line  was  required  to  secure 
the  boats  together,  and  to  keep  them  in  their  positions.  If  she  failed 
in  this  duty  she  was  guilty  of  a  maritime  fault.     The  parting  of  the 


i64  THE  LAW  OF  THE  SEA 

line  connecting  the  boat  in  the  rear  on  the  port  side  with  the  fleet, 
was  the  commencement  of  the  difficulty  that  led  to  this  accident.  In 
the  effort  to  recover  this  boat,  the  consequences  followed  which  pro- 
duced the  collision.  If  it  was  good  seamanship  on  the  part  of  the 
captain  of  the  tug  to  back  in  such  an  emergency,  he  was  required, 
before  undertaking  it,  at  least  to  know  that  his  bridle  line  would  hold. 
And  if  the  sea  was  in  the  condition  the  captain  of  the  tug  says  it 
was,  it  was  bad  management  to  back  at  all.  Whether  this  be  so  or 
not,  he  was  bound,  in  executing  a  maneuver  to  recover  the  detached 
boat,  to  look  to  it  that  no  other  boat  in  the  fleet  suffered  in  conse- 
quence of  it. 

A  tug  is  not  required  to  subject  herself  to  damage  in  order  to 
protect  her  tow.  An  illustration  of  this  is  found  in  the  case  of  the 
Mosher,  ly  Fed.  Cas.  No.  9874,  from  which  the  following  is 
quoted : 

The  schooner  Nicaragua,  owned  by  libellants,  on  the  6th  of  August 
having  encountered  a  heavy  wind  and  high  sea,  which  continued  dur- 
ing the  day,  came  to  anchor,  and  shortly  after,  the  tug  Mosher  took 
her  in  tow.  The  schooner  furnished  the  tow  line.  The  first  broke; 
a  second  bore  the  strain.  The  vessel  in  the  act  of  being  towed  into 
the  harbor  was  stranded  and  ultimately  lost.  Is  the  tug  responsible 
for  this  loss? 

It  is  charged  that  the  accident  happened  through  the  negligence 
and  want  of  care  of  the  officers  of  the  tug,  and  that,  at  any  rate,  the 
disaster  would  not  have  been  so  ruinous,  if  these  officers  had  used 
proper  efforts  to  relieve  the  Nicaragua.  The  first  question  is,  what 
degree  of  diligence  and  skill  was  required  of  the  tug?  The  rule  is 
w'ell  settled  that  reasonable  diligence  and  ordinary  skill  is  the  measure 
of  the  tug's  duty.  The  tug  did  not  engage  to  insure  the  safety  of  the 
tow,  nor  for  the  use  of  the  highest  nautical  skill.  I  think  Judge 
Drummond  stated  the  rule  fairly,  that  the  tug  is  bound  to  know  the 
ordinary  and  proper  channel  into  the  harbor  and  to  exercise  reason- 
able skill  under  the  circumstances,  in  towing  the  vessel. 

Like  the  district  judge,  I  do  not  wish  to  relax  the  need  of  caution 
of  tugs  in  towing  vessels  nor  establish  harsh  rules  to  make  them  in- 
surers of  property. 

In  what  respect  did  the  Mosher  show  less  diligence  and  skill  than 
required?  The  schooner  having  taken  the  chances  of  entering  the 
harbor  in  a  storm,  the  tug  is  not  to  be  held  responsible,  in  the  absence 
of  proof  of  negligence,  if  the  schooner  touched  some  ridge  of  sand. 
It  is  urged  that  she  went  aground  on  the  old  sand-bar.  Although 
satisfied  that  she  was  ultimately  wrecked  there,  I  am  not  satisfied  she 
first  struck  there.  The  winds  and  waves  drove  her  south,  and  the 
probability  is  that  her  first  position  was  changed. 


TOWAGE  AND  PILOTAGE  165 

But  the  tug  is  blamed  for  not  using  more  effort  than  she  did  to  get 
the  schooner  off  the  bar;  in  other  words,  is  charged  with  fault  in 
abandoning  the  schooner  too  soon.  It  is  hard  to  get  at  the  truth  for 
the  witnesses  on  each  vessel  differ  materially  in  their  account  of 
what  occurred.  At  the  argument  it  did  seem  to  me  that  the  tug  left 
the  schooner  to  her  fate  sooner  than  she  ought  to  have  done,  but  since 
reading  the  testimony,  I  cannot  say  that  she  did  not  employ  all  the 
means  practicable  and  consistent  with  her  own  safety.  The  captain 
of  the  tug  was  not  obliged  to  stay  by  the  schooner  if  in  good  faith  he 
believed  he  would  endanger  his  own  vessel.  On  both  points  he  is 
supported  by  the  testimony.  I  think  the  decree  dismissing  the  libel 
should  be  affirmed. 

5.  Duty  of  Tow. —  The  vessels  in  tew  must  be  properly  manned 
and  equipped  and  carefully  follow  the  tug.  They  must  be  vigilant 
to  observe  all  orders  and  signals.  They  must  be  ready,  in  case  of 
emergencies,  to  cast  loose  from  the  tug  and  each  other,  if  thereby 
collision  or  stranding  may  be  avoided. 

In  the  Marie  Palmer,  191  Fed.  79,  above  cited,  the  tug  defended 
the  suit  brought  by  the  schooner  on  the  ground  that  the  schooner 
was  unseaworthy  when  taken  in  tow.  The  unseaworthy  condi- 
tion of  a  tow  is  a  good  defense  to  such  a  suit  if  that  fact  be  con- 
cealed from  the  tug,  but  not  where  the  condition  of  the  tow  is 
knowrr  to  the  tug. 

Equally  ineffective  is  the  plea  that  the  master  of  the  tug  did  not 
know  the  extremities  to  which  the  schooner  had  been  reduced  before 
he  undertook  the  towage  service.  The  Palmer  was  found  storm 
bound,  at  anchor,  in  Lookout  Bight.  Had  she  been  entirely  sea- 
worthy under  her  sail  power,  the  contract  to  tow  her  would  have  been 
superfluous.  These  facts  were  known  to  the  master  of  the  tug.  But, 
if  this  were  not  sufficient,  that  officer  must  have  taken  notice  of  the 
vital  fact  that  her  storm  tossed  condition  had  been  passed  upon  by 
an  official  board  of  survey,  and  that  body,  after  careful  examination, 
had  found  that  she  might  proceed  with  her  voyage  under  tow.  It 
was  optional  with  the  captain  of  the  tow  boat  to  accept  that  finding, 
and  take  the  tow.  Certainly  it  put  him  upon  notice  of  inquiry,  and  he 
did  not  hesitate  to  take  the  tow  as  in  the  condition  in  which  the 
board  of  survey  found  her. 

6.  Negligence. —  The  tug  is  liable  for  negligence  only,  apart 
from  the  terms  of  any  special  contract,  and  then  only  for  such 
negligence  as  is  the  proximate  cause  of  the  loss.  Negligence  is 
the  failure  to  observe  the  rules  of  navigation  or  to  employ  the 
requisite  degree  of  care  and  skill  of  competent  mariners  in  like 
situations.     The  burden  of  proving  negligence  usually  rests  upon 


i66  THE  LAW  OF  THE  SEA 

the  party  charging  it  but  towage  sufficiently  resembles  the  con- 
tract of  carriage  as  frequently  to  present  cases  in  which  the  mere 
happening  of  an  accident  to  the  tow  creates  a  presumption  of 
negligence  on  the  part  of  the  tug.  Thus  the  pleadings  themselves 
may  require  the  tug  to  explain  the  disaster  and  prove  that  she  was 
not  at  fault.  This  presumption  has  been  applied  where  the  tow 
is  stranded  off  its  proper  course  in  calm  weather;  or  where  the 
tug  has  grounded  the  tow  while  proceeding  through  a  fog  at  full 
speed  without  soundings ;  or  where  the  tow  has  been  brought  into 
collision  with  an  anchored  vessel ;  or  where  the  accident  occurs  in 
a  customary  channel ;  or  where  the  tug's  steering  gear  and  equip- 
ment prove  insufficient ;  or  where  the  tow  strikes  a  known  obstruc- 
tion to  navigation. 

The  case  of  the  Marie  Palmer,  heretofore  cited,  is  an  example 
of  negligence  on  the  part  of  the  tug. 

Where,  from  the  negligent  operation  of  a  tug,  damage  is  in- 
flicted by  a  tow,  although  the  tug  herself  does  no  damage,  a  mari- 
time lien  for  tort  arises  against  the  tug  and  not  against  the  tow. 
In  the  Clara  Clarita,  23  Wall,  i,  the  tug  engaged  and  undertook 
to  tow  a  burning  vessel  from  her  berth  to  a  point  where  it  was  in- 
tended to  beach  her.  While  in  tow  the  flames  burst  through  the 
deck  of  the  burning  vessel  and  severed  the  hawser  by  which  she 
was  attached  to  the  tug,  causing  her  to  drift  upon  and  set  fire  to 
the  libellant's  schooner.  Although  the  tug  was  far  away  when 
the  damage  was  done,  the  court  held  her  to  be  in  fault  because 
under  the  circumstances  the  burning  of  the  hawser  ought  to  have 
been  foreseen  and  the  owners  of  the  damaged  schooner  were  held 
to  be  entitled  to  a  maritime  lien  upon  the  tug  for  the  damage  suf- 
fered. It  was  also  held  that  the  tug  alone  and  not  the  owners  of 
the  burned  tow  should  respond  in  damages.  A  tug  is  held  not  to 
be  the  agent  of  her  tow  but  to  occupy  the  position  of  an  inde- 
pendent contractor.     The  Court  said : 

By  employing  a  tug  to  transport  their  vessel  from  one  place  to 
another  the  owners  of  the  tow  do  not  necessarily  constitute  the  mas- 
ter and  crew  of  the  tug  their  agents  in  performing  the  services,  as 
they  neither  appoint  the  master  of  the  tug  nor  employ  the  crew,  nor 
can  they  displace  either  one  or  the  other.  Their  contract  for  the 
service,  even  though  it  was  negotiated  with  the  master  of  the  tug,  is, 
in  legal  contemplation,  made  with  the  owners  of  the  vessel  employed ; 
and  the  master  of  the  tug  continues  to  be  the  agent  of  the  owners  of 
his  own  vessel,  and  they  are  responsible  for  his  acts  in  her  navigation 
and  management. 


TOWAGE  AND  PILOTAGE  167 

On  the  other  hand  cases  may  arise  in  which  the  tow  alone  and 
not  the  tug  is  liable  for  injury  to  a  third  vessel  or  person.  Thus 
in  Albina  Ferry  Co.  v.  Imperial  and  S.  G.  Reed,  38  Fed.  614, 
the  tug  S.  G.  Reed  had  in  tow  the  ship  Imperial.  The  ferry  boat 
Veto  No.  2  was  operated  on  a  wire  cable.  The  Imperial  struck 
the  cable,  causing  the  ferry  boat  to  sustain  some  damage.  The 
tug  was  employed  by  the  pilot  of  the  Imperial  for  the  purpose  of 
towing  the  vessel  and  at  the  time  of  the  collision  was  in  the  con- 
trol and  service  of  the  ship.  There  was  no  evidence  of  any  fault 
on  the  part  of  the  tug  or  of  any  one  employed  on  her.  The  Court 
said: 

Under  these  circumstances  the  steamboat  (i.e.,  tug)  and  the  ship 
constitute  but  one  vessel  and  that  vessel  was  the  ship.  The  tug  was 
the  mere  servant  of  the  tow,  and  both  were  under  the  control  and 
direction  of  the  pilot  in  charge  of  the  latter.  Admitting  for  a  mo- 
ment that  a  wrong  has  been  committed,  the  owners  of  the  Imperial, 
through  their  agent,  the  pilot  in  charge,  are  the  wrongdoers,  and  their 
vessel  is  alone  liable  therefor.  The  owner  of  the  Reed  did  not  par- 
ticipate in  the  supposed  wrong,  neither  by  itself  nor  by  its  servants. 
As  well  say  that  the  wrong  of  a  person  who  recklessly  rides  another 
down  in  a  public  thoroughfare  is  the  wrong  of  the  liveryman  from 
whom  he  hired  the  horse. 

It  is  not  denied  that  there  may  be  and  have  been  cases  in  which 
both  tug  and  tow  are  liable  for  the  damage  sustained  by  a  collision. 
But  in  such  case  both  participate  in  the  management  of  the  vessel,  and 
the  negligence  of  misconduct  causing  the  same. 

A  case  in  which  both  tug  and  tow  were  held  liable  is  that  of  the 
Civilta  and  the  steam  tug  Restless,  13  Otto  699.  In  this  case  the 
tow  had  on  board  a  pilot  and  the  tug  was  subject  to  his  orders. 
The  libellant's  schooner  was  struck  by  the  hawser,  then  by  the 
tow.  The  court  said  that  the  tow  and  tug  were,  in  law,  one  vessel, 
and  the  question  was,  which  one?     It  was  held: 

The  tug  furnished  the  motive  power  for  herself  and  the  ship. 
Both  vessels  were  under  the  general  orders  of  the  pilot  on  the  ship, 
but  it  is  expressly  found  as  a  fact  that  the  tug  actually  received  no 
orders  from  him.  Being  on  the  ship,  which  was  two  hundred  seventy 
feet  astern  of  the  tug,  it  is  not  to  be  presumed  that  he  was  to  do 
more  than  direct  the  general  course  to  be  taken  by  the  ship  in  getting 
to  her  place  of  destination.  The  details  of  the  immediate  navigation 
of  the  tug,  with  reference  to  approaching  vessels,  must  necessarily 
have  been  left  to  a  great  extent  to  those  on  board  of  her.  She  was 
where  she  would  ordinarily  see  an  object  ahead  before  those  on  the 
ship  could,  and  having  all  the  motive  power  of  the  combined  vessels 


i68  THE  LAW  OF  THE  SEA 

under  her  own  control,  she  was  in  a  situation  to  act  promptly  and  do 
what  was  required  under  the  circumstances. 

We  do  not  entertain  a  doubt  that,  situated  as  the  tug  was,  in  the 
night,  so  far  away  from  the  ship,  it  was  her  duty  to  do  what  was 
required  by  the  law  of  a  vessel  under  steam,  to  keep  herself  and  the 
ship  out  of  the  way  of  an  approaching  vessel,  particularly  if  the  pilot 
of  the  ship  did  not  assume  actual  control  for  the  time  being  of  the 
navigation  of  the  two  vessels. 

Such  being  the  case,  we  think  it  clear  both  vessels  were  in  fault. 

A  decree  was  accordingly  given  against  both  the  ship  and  the 
tug  and  the  damage  apportioned  one-half  to  each  with  the  provi- 
sion that  if  either  of  the  vessels  should  prove  insufficient  to  pay 
its  share  the  residue  might  be  collected  from  the  other. 

7.  Liability  for  Damage. —  A.  As  Betzveen  Tug  and  Tozv. —  If 
the  wrongful  act  or  breach  of  contract  of  either  tug  or  tow  occa- 
sions damage  to  the  other,  liability  will  follow  and  usually  a  mari- 
time lien.  The  owners  of  the  tug  have  a  lien  upon  the  tow  for 
the  price  of  the  towage  and  the  owners  of  the  tow  and  its  cargo 
have  a  lien  upon  the  tug  for  failure  to  perform  the  contract  or 
damages  sustained  through  negligence. 

An  example  is  found  in  the  Cayuga,  16  Wall.  177.  There  the 
tug  Cayuga  undertook  a  tow  of  thirty  canal  boats  and  barges  from 
Albany  to  New  York.  The  tow  was  faultily  made  up  by  the  tug, 
libellant's  canal  boat  being  upwards  of  1,000  feet  astern  of  her. 
By  reason  of  this  faulty  make-up  and  of  the  method  of  navigation 
adopted  by  the  tug,  libellant's  canal  boat  was  twice  brought  into 
collision  with  obstacles  in  the  river,  the  first  time  with  a  light- 
house and  the  second  with  a  submerged  rock.  The  result  of  the 
second  collision  was  the  loss  of  the  boat.  The  tug  defended  on 
the  ground  that  the  canal  boat  was  unseaworthy  and  that  her  cap- 
tain was  negligent  in  cutting  her  loose  from  the  tow  immediately 
after  the  second  collision. 

Even  where  a  contract  of  towage  specifically  provides  that  the 
tow  is  being  conveyed  at  her  own  risk,  the  tug  will  be  liable  in 
admiralty  if  through  the  tug's  negligence  the  tow  is  injured.  The 
contract  will  not  avail  as  a  defense  against  negligence  (The  Syra- 
cuse, 12  Wall.  167). 

In  the  case  of  the  Wm.  H.  Webb,  14  Wall.  406,  the  owner  of 
the  steamship  Shooting  Star  brought  a  libel  in  rem  against  the  tug 
IVm.  H.  Webb  for  breach  of  contract  to  tow  the  Shooting  Star 


TOWAGE  AND  PILOTAGE  169 

from  Portsmouth  to  New  York,  charging  negligence  and  misman- 
agement in  the  towage,  whereby  the  tow  was  grounded  on  Tucker- 
nuck  Shoal,  which  was  more  than  three  miles  out  of  the  proper 
course.  The  court  held  that  the  tug  was  negligent  and,  therefore, 
liable.     Mr.  Justice  Strong  said : 

It  must  be  conceded  that  an  engagement  to  tow  does  not  impose 
either  an  obligation  to  insure,  or  the  liability  of  common  carriers. 
The  burden  is  always  upon  him  who  alleges  the  breach  of  such  a 
contract  to  show  either  that  there  has  been  no  attempt  at  performance, 
or  that  there  has  been  negligence  or  unskillfulness  to  his  injury  in 
the  performance.  Unlike  the  case  of  common  carriers,  damage  sus- 
tained by  the  tow  does  not  ordinarily  raise  a  presumption  that  the 
tug  has  been  in  fault.  The  contract  requires  no  more  than  that  he 
who  undertakes  to  tow  shall  carry  out  his  undertaking  with  that  de- 
gree of  caution  and  skill  which  prudent  navigators  usually  employ  in 
similar  services. 

The  action  for  negligent  performance  of  the  towage  contract 
may  be  either  against  the  tug  or  its  owner  by  the  owners  or  under- 
writers of  the  injured  property.  The  damages  are  those  which 
naturally  follow  the  breach ;  if  the  tow  and  cargo  are  totally  lost, 
the  market  value,  at  the  time  and  place  of  the  loss,  with  interest, 
will  be  allowed  as  in  cases  of  loss  by  collision;  if  the  loss  is  par- 
tial then  the  expenses  of  repairs,  with  compensation  for  loss  of 
use,  or  demurrage  for  the  time  which  the  work  of  rescue  and  re- 
pair occupies.  Where  the  tow  is  old  and  unseaworthy,  the  ad- 
miralty sometimes  apportions  the  damages.  Where  both  tug  and 
tow  are  at  fault  the  damages  will  be  divided  between  them  accord- 
ing to  the  usual  admiralty  rule  ^  (see  the  Civilta  and  the  Restless, 
13  Otto  699,  supra). 

B.  To  Third  Parties. —  Where  a  third  party  is  damaged  through 
the  fault  of  a  tug  or  the  vessel  which  she  has  in  tow,  the  party 
damaged  has  a  right  of  action  against  the  author  of  the  injury. 
It  is  often  said  that  the  tug  and  her  tow  constitute  a  single  entity. 
This  is  true  to  the  extent  that  where  through  the  negligent  opera- 
tion of  the  tug  damage  is  done  to  a  third  party  by  one  of  the  ves- 
sels in  tow,  the  responsibiHty  rests  upon  the  tug,  but  responsibility 
in  such  cases  will  not  ordinarily  attach  to  the  vessel  in  tow.  The 
tow  may  be  liable  in  such  a  case,  on  the  theory  that  the  tug  is  her 
agent,  but  if  the  tug  occupies  the  status  of  an  independent  con- 
tractor no  liability  rests  upon  the  tow.     We  have  seen  in  the  Clara 

1  See  §  9,  Chapter  XI,  supra. 


170  THE  LAW  OF  THE  SEA 

Clarita,  23  Wall,  i,  cited  in  §  5,  supra,  a  case  in  which  a  tug  was 
held  liable  for  damage  by  the  tow  and  in  which  the  tow  was  held  to 
be  free  from  liability  because  the  tug  was  not  her  agent.  In  the 
case  of  Liverpool  &c.  Navigation  Co.  v.  Brooklyn  Eastern  Dist. 
Terminal,  decided  December  8,  1919  (U.  S.  Supreme  Court  Ad- 
vance Sheets,  85),  a  car  float  was  lashed  to  the  side  of  the  steam 
tug  Intrepid,  and  through  the  negligent  operation  of  the  tug  the 
float  was  driven  into  collision  with  the  S.  S.  Vaiihan,  the  tug,  her- 
self, not  coming  into  collision.  It  happened  that  the  car  float  and 
tug  belonged  to  the  same  owner.  It  was  held  that  the  responsi- 
bility was  that  of  the  tug  alone ;  that  she  might  limit  her  liability 
to  her  own  value ;  that  the  float  belonged  to  the  same  owner  made 
no  difference,  and  the  float  accordingly  escaped  liability.  Mr. 
Justice  Holmes  said : 

The  car  float  was  the  vessel  that  came  into  contact  with  the 
Vauban,  but  as  it  was  a  passive  instrument  in  the  hands  of  the  In- 
trepid, that  fact  does  not  affect  the  question  of  responsibility  (citing 
numerous  cases). 

These  cases  show  that  for  the  purposes  of  liability  the  passive  in- 
strument of  the  harm  does  not  become  one  with  the  actively  responsi- 
ble vessel  by  being  attached  to  it.  If  this  were  a  proceeding  in  rem 
it  may  be  assumed  that  the  car  float  and  disabled  tug  would  escape, 
and  none  the  less  that  they  were  lashed  to  the  Intrepid,  and  so  were 
more  helplessly  under  its  control  than  in  the  ordinary  case  of  a  tow. 

It  is  said,  however,  that  when  you  come  to  limiting  liability,  the 
foregoing  authorities  are  not  controlling, —  that  the  object  of  the 
statute  is  "  to  limit  the  liability  of  vessel  owners  to  their  interest 
in  the  adventure,"  and  that  the  same  reason  that  requires  the  surren- 
der of  boats  and  apparel  requires  the  surrender  of  the  other  instru- 
mentalities by  means  of  which  the  tug  was  rendering  the  services  for 
which  it  was  paid.  It  can  make  no  difference,  it  is  argued,  whether 
the  cargo  is  carried  in  the  hold  of  the  tug  or  is  towed  in  another 
vessel.  But  that  is  the  question,  and  it  is  not  answered  by  putting  it. 
The  respondent  answers  the  argument  with  the  suggestion  that,  if 
sound,  it  applies  a  different  rule  in  actions  in  personam  from  that 
which,  as  we  have  said,  governs  suits  in  rem.  Without  dwelling  upon 
that,  we  are  of  opinion  that  the  statute  does  not  warrant  the  distinc- 
tion for  which  the  petitioner  contends. 

In  the  case  of  Sturgis  v.  Boyer,  24  How.  no,  the  ship  Wis- 
consin, which  was  being  towed  by  the  tug  Hector,  collided  with 
the  lighter  Republic  in  New  York  harbor.  The  owners  of  the 
lighter  libeled  both  the  tug  and  the  tow.  The  owner  of  the  tug 
filed  an  answer,  setting  up  that  the  tug  was  merely  the  motive- 


TOWAGE  AND  PILOTAGE  171 

power  to  move  the  ship  to  the  pier,  that  the  tug  and  her  crew  were 
subject  to  and  obeyed  the  orders  of  the  master  and  other  officers 
in  charge  of  the  ship,  and  prayed  that  in  case  the  libellants  should 
recover  any  sum  against  the  ship  and  tug,  that  he,  the  owner  of 
the  tug,  might  have  decree  over  against  the  ship.  The  owners  of 
the  ship  admitted  that  she  had  a  master  and  a  full  crew  on  board, 
but  alleged  that  they  were  all  under  the  direction  and  control  of 
the  master  and  officers  of  the  tug.  The  Court  was  clearly  of 
opinion  that  a  case  of  negligence  was  made  out  by  the  owners  of 
the  lighter,  and  the  only  question  in  doubt  was  as  to  the  relative 
responsibility  of  the  tug  and  vessel  in  tow. 

Cases  arise,  undoubtedly,  when  both  the  tow  and  the  tug  are  jointly 
liable  for  the  consequences  of  a  collision;  as  when  those  in  charge 
of  the  respective  vessels  jointly  participate  in  their  control  and  man- 
agement, and  the  master  or  crew  of  both  vessels  are  either  deficient 
in  skill,  omit  to  take  due  care,  or  are  guilty  of  negligence  in  their 
navigation.     Other  cases  may  well  be  imagined  when  the  tow  alone 
would  be  responsible ;  as  when  the  tug  is  employed  by  the  master  or 
owners  of  the  tow  as  the  mere  motive  power  to  propel  their  vessels 
from  one  point  to  another,  and  both  vessels  are  exclusively  under  the 
control,  direction  and  management  of  the  master  and  crew  of  the 
tow.     Fault  in  that  state  of  the  case  cannot  be  imputed  to  the  tug, 
provided  she  was  properly  equipped  and  seaworthy  for  the  business 
in  which  she  was  engaged;  and  if  she  was  the  property  of  third  per- 
sons, her  owners  cannot  be  held  responsible  for  the  want  of  skill, 
negligence  or  mismanagement  of  the  master  and  crew  of  the  other 
vessel,  for  the  reason  that  they  are  not  the  agents  of  the  owners  of 
the  tug,  and  her  owners  in  the  case  supposed  do  not  sustain  towards 
those  entrusted  with  the  navigation  of  the  vessel  the  relation  of  the 
principal.     But  whenever  the  tug,  under  the  charge  of  her  own  mas- 
ter and  crew,  and  in  the  usual  and  ordinary  course  of  such  an  em- 
ployment, undertakes  to  transport  another  vessel,  which,  for  the  time 
being,  has  neither  her  master  nor  crew  on  board,  from  one  point  to 
another,  over  waters  where  such  accessory  motive  power  is  neces- 
sary or  usually  employed,  she  must  be  held  responsible  for  the  proper 
navigation    of    both    vessels;    and   third    persons    suffering    damage 
through  the  fault  of  those  in  charge  of  the  vessels  must,  under  such 
circumstances,  look  to  the  tug,  her  master  or  owners,  for  the  recom- 
pense which  they  are  entitled  to  claim  for  any  injuries  that  vessels 
or  cargo  may  receive  by  such  means.     Assuming  that  the  tug  is  a 
suitable  vessel,  properly  manned  and  equipped  for  the  undertaking, 
so  that  no  degree  of  negligence  can  attach  to  the  owners  of  the  tow, 
on  the  ground  that  the  motive  power  employed  by  them  was  in  an 
unseaworthy  condition,   and  the  tow,   under  the  circumstances   sup- 
posed, is  no  more  responsible  for  the  consequences  of  a  collision  than 


172  THE  LAW  OF  THE  SEA 

so  much  freight ;  and  it  is  not  perceived  that  it  can  make  any  dififer- 
ence  in  that  behalf,  that  a  part,  or  even  the  whole  of  the  officers  and 
crew  of  the  tow  are  on  board,  provided  it  clearly  appears  that  the 
tug  was  a  seaworthy  vessel,  properly  manned  and  equipped  for  the 
enterprise,  and  from  the  nature  of  the  undertaking,  and  the  usual 
course  of  conducting  it,  the  master  and  crew  of  the  tow  were  not  ex- 
pected to  participate  in  the  navigation  of  the  vessel,  and  were  not 
guilty  of  any  negligence  or  omission  of  duty  by  refraining  from  such 
participation. 

Unless  the  owner  and  the  person  or  persons  in  charge  of  the  vessel 
in  some  way  sustain  towards  each  other  the  relation  of  principal  and 
agent,  the  injured  party  cannot  have  his  remedy  against  the  colliding 
vessel.  By  employing  a  tug  to  transport  their  vessel  from  one  point 
to  another,  the  owners  of  the  tow  do  not  necessarily  constitute  the 
master  and  crew  of  the  tug  their  agents  in  performing  the  service. 
They  neither  appoint  the  master  of  the  tug,  or  ship  the  crew ;  nor  can 
they  displace  either  one  or  the  other.  Their  contract  for  the  service, 
even  though  it  was  negotiated  with  the  master,  is,  in  legal  contem- 
plation, made  with  the  owners  of  the  vessel,  and  the  master  of  the 
tug,  notwithstanding  the  contract  was  negotiated  with  him,  continues 
to  be  the  agent  of  the  owners  of  his  own  vessel,  and  they  are  re- 
sponsible for  his  acts  in  her  navigation. 

Whether  the  party  charged  ought  to  be  held  liable,  is  made  to  de- 
pend, in  all  cases  of  this  description,  upon  his  relation  to  the  wrong- 
doer. If  the  wrongful  act  was  done  by  himself,  or  was  occasioned 
by  his  negligence,  of  course  he  is  liable,  and  he  is  equally  so,  if  it  was 
done  by  one  towards  whom  he  bore  relation  of  principal;  but  lia- 
bility ceases  where  the  relation  itself  entirely  ceases  to  exist,  unless 
the  wrongful  act  was  performed  or  occasioned  by  the  party  charged. 

Applying  these  principles  to  the  present  case,  it  is  obvious  what  the 
resuh  must  be.  Without  repeating  the  testimony,  it  will  be  sufficient 
to  say,  that  it  clearly  appears  in  this  case  that  those  in  charge  of  the 
steam  tug  had  the  exclusive  control,  direction  and  management  of 
both  vessels,  and  there  is  not  a  word  of  proof  in  the  record,  either 
that  the  tug  was  not  a  suitable  vessel  to  perform  the  service  for  which 
she  was  employed,  or  that  any  one  belonging  to  the  ship  either  par- 
ticipated in  the  navigation,  or  was  guilty  of  any  degree  of  negligence 
whatever  in  the  premises. 

8.  Pilots.— There  are  port  and  sea  pilots,  the  latter  being  a 
name  for  those  of  her  officers  who  navigate  the  ship  at  sea  and 
the  former  meaning  those  who  take  the  ship  in  and  out  of  harbor, . 
Port  or  coast  pilots  are  a  class  by  themselves,  exercising  an  office 
of  great  importance,  and  usually  regulated  by  law.     This  is  the 


TOWAGE  AND  PILOTAGE  173 

class  referred  to  in  U.  S.  Comp.  St.  1916,  §  7981,  where  it  is 
enacted  that  "  until  further  provision  is  made  by  Congress,  all 
pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States  shall  continue  to  be  regulated  in  conformity  with  the  exist- 
ing laws  of  the  States  respectively  wherein  such  pilots  may  be,  or 
with  such  laws  as  the  States  may  respectively  enact  for  the  pur- 
pose." The  former  class,  or  sea  pilots,  are  dealt  with  by  Congress 
in  §§  8204,  8205,  8206,  8207,  8208,  etc.,  of  the  same  volume.  The 
several  states  may,  therefore,  regulate  and  license  port  pilots,  that 
is,  the  class  whose  employment  is  to  guide  vessels  in  and  out  of 
their  respective  ports.  They  may  make  it  a  criminal  offense  for 
a  pilot  not  duly  qualified  under  their  laws  to  take  a  vessel  through 
their  waters  and  make  all  requisite  provisions  in  regard  to  quali- 
fications, fees  and  licenses,  so  long  as  Congress  refrains  from  fur- 
ther legislation  on  the  subject.  Most  of  the  States  on  the  sea- 
board have  such  statutes,  different  somewhat  in  detail  but  gen- 
erally similar  in  effect.  Ships  are  not  absolutely  bound  to  accept 
the  services  of  such  pilots  but  must  pay  their  fees,  in  whole  or  in 
part,  if  services  are  tendered  and  declined. 

g.  Duties. —  The  pilot  is  the  servant  of  the  owner,  if  voluntarily 
employed,  otherwise  not.  Like  other  persons,  he  is  answerable 
for  any  damage  he  may  cause  by  negligence  or  default.  Occu- 
pying a  quasi-public  position  and  the  ship  not  being  free  to  decline 
his  services,  it  is  his  duty  to  render  his  services,  when  requested, 
to  the  best  of  his  ability.  If  he  refuses,  he  may  be  liable  both 
civilly  and  criminally.  The  ancient  sea-laws  were  stringent  in 
this  regard ;  the  Laws  of  Oleron,  for  example,  provide  that  if  dis- 
aster is  sustained  by  the  ignorance  of  the  pilot,  he  shall  be  obliged 
to  make  full  satisfaction  therefor,  and,  if  he  has  not  wherewith  to 
make  satisfaction,  the  master,  or  any  one  of  the  mariners  or  mer- 
chants may  cut  off  his  head  and  shall  not  be  bound  to  answer  for 
it.  When  a  pilot  takes  charge  of  a  vessel  at  sea,  it  is  his  duty  to 
stay  by  her,  unless  discharged,  until  she  reaches  her  destination 
or  some  place  of  safety.  He  is  held  to  be  able  to  anticipate  the 
action  of  the  wind  and  sea  on  boats  in  his  charge.  He  must  be 
thoroughly  familiar  with  the  topography  and  character  of  the 
waters  for  which  he  offers  his  services,  and  keep  acquainted  with 
all  changes  therein,  both  as  to  fixed  and  temporary  landmarks  and 
also  as  to  the  character  of  the  bottom  and  presence  of  temporary 
obstructions  therein. 


174  THE  LAW  OF  THE  SEA 

10.  Authority. —  While  a  pilot  is  on  board  he  has  absolute  and 
exclusive  authority  in  the  absence  of  the  master,  and,  probably, 
ranks  the  master  when  he  is  present.  The  authorities  are  not 
plain  or  satisfactory  on  this  point,  but  there  ought  not  to  be  any 
divided  authority,  particularly  in  such  navigation  as  that  for  which 
the  law  requires  the  employment  of  a  pilot.  Unless  the  master 
retains,  or  reassumes,  charge  of  the  ship,  the  pilot  has  exclusive 
control  and  all  are  bound  to  obey  his  orders ;  he  is  an  officer  of  the 
ship  within  the  meaning  of  the  statutes  in  regard  to  revolts  and 
mutinies.  But  the  master's  authority  is  not  annulled  and  it  would 
be  his  duty  to  interfere  in  case  of  gross  ignorance  or  palpable  mis- 
take on  the  part  of  the  pilot. 

Thus,  in  the  case  of  the  China,  7  Wall.  53,  where  the  pilot  was 
employed  under  a  compulsory  pilot  law,  the  Court  said: 

It  is  the  duty  of  the  master  to  interfere  in  cases  of  the  pilot's  in- 
toxication or  manifest  incapacity,  in  cases  of  danger  which  he  does 
not  foresee,  and  in  all  cases  of  great  necessity.  The  master  has  the 
same  power  to  displace  the  pilot  that  he  has  to  remove  any  sub- 
ordinate officer  of  the  vessel.  He  may  exercise  it  or  not,  according 
to  his  discretion. 

In  Ralli  v.  Troop,  157  U.  S.  386,  Justice  Gray  said: 

To  the  pilot,  therefore,  temporarily  belongs  the  whole  conduct  of 
the  navigation  of  the  ship,  including  the  duty  of  determining  her 
course  and  speed,  and  the  time,  place  and  manner  of  anchoring  her. 
But  the  master  still  has  the  duty  of  seeing  to  the  safety  of  the  ship, 
and  to  the  proper  stowage  of  the  cargo.  For  instance,  the  duty  to 
keep  a  good  lookout  rests  upon  the  master  and  crew.  And  it  has 
been  held  by  Dr.  Lushington,  in  the  English  High  Court  of  Admiralty, 
that,  although  a  pilot  is  in  charge,  the  trim  of  the  ship  is  within  the 
province  of  the  master;  as  well  as  the  duty,  if  two  vessels  entangled 
together,  to  cut  away  part  of  the  rigging  of  his  vessel,  when  neces- 
sary, in  order  to  avoid  a  collision,  or  to  lessen  its  effect,  because  the 
vessel,  the  judge  said,  "  was  not  under  orders  of  the  pilot  for  this 
purpose ;  she  was  only  under  the  pilot's  directions  for  the  purpose  of 
navigation;  and  the  master,  in  a  case  of  this  description,  is  not  to 
wait  for  the  pilot's  directions,  which  would  tend  to  create  great  con- 
fusion and  delay." 

11.  Compensation. —  Compensation  of  pilots  is  largely  regu- 
lated by  local  statutes  and  where  their  employment  is  compulsory, 
an  offer  of  service,  if  declined,  will  nevertheless  create  a  liability 
for  full  or  partial  fees  against  the  vessel.  H  no  fees  are  fixed 
by  local  law,  the  amount  will  be  measured  by  what  is  customary 


TOWAGE  AND  PILOTAGE  175 

or  fair  and  reasonable.  By  the  general  maritime  law,  the  pilot 
has  a  lien  upon  the  ship  for  services  rendered  which  is  of  high 
rank  and  priority  (but  is  junior  to  a  "  preferred  mortgage  given 
on  an  American  ship  pursuant  to  the  Merchant  Marine  Act  of 
1920,  see  Appendix).  By  acting  as  master,  he  may  waive  his  lien 
as  pilot  in  those  cases  where  there  is  no  lien  for  a  master's  serv- 
ices; and,  correspondingly,  one  who  is  engaged  and  ships  as  a 
pilot  of  a  vessel,  whereon  another  stands  as  registered  master,  has 
a  lien  on  the  boat  for  his  wages  although  he  may  be  in  entire 
charge  of  her  navigation. 

12.  Negligence. —  The  pilot  is  considered  as  the  master  for  the 
time  being  and  is  answerable  for  any  loss  or  injury  caused  by  his 
want  of  skill.  Such  negligence  may  consist  in  lack  of  knowledge 
of  the  locality  or  failure  to  handle  the  ship  with  ordinary  care. 
In  general  he  must  exercise  the  ordinary  care  and  skill  of  his  pro- 
fession and  failure  so  to  do  will  render  him  liable  for  negligence. 
Harbor  pilots,  for  example,  are  selected  for  their  personal  knowl- 
edge of  the  topography  through  which  they  take  the  ship  and  are 
deemed  to  know  all  its  landmarks,  channels,  courses,  construc- 
tions and  local  regulations.  All  these  they  must  know  and  remem- 
ber and  observe.  They  must  be  expert  in  their  business  and  each 
must  furnish  the  same  degree  of  care  and  skill  commonly  possessed 
by  others  in  the  same  vocation.  Thus  pilots  have  been  held  liable 
for  running  a  vessel  against  a  pier  freshly  built  into  the  chan- 
nel ;  for  failing  to  appreciate  the  significance  of  fixed  lights ;  for 
towing  in  a  gale ;  for  hugging  the  shore  on  a  dark  night ;  they  are 
answerable  for  the  safety  of  the  property  in  their  charge  and,  in 
the  event  of  damage  or  loss,  will  be  released  from  liability  only 
by  showing  that  the  causes  were  beyond  their  control,  as  by  prov- 
ing due  care  and  skill  or  that  the  cause  was  an  act  of  God  or  un- 
avoidable emergency.  Where  a  vessel  in  his  charge  is  brought 
into  collision  and  pays,  either  under  a  decree  or  through  a  reason- 
able settlement,  the  damages  arising  therefrom,  the  pilot  may  be 
held  liable  over  to  her  owners  for  what  they  have  been  so  com- 
pelled to  pay.  But  members  of  pilots'  associations  are  not  jointly 
liable  for  the  negligence  of  their  members  even  if  their  earnings 
go  into  a  common  fund. 

A  case  illustrative  of  the  duties  and  responsibilities  of  a  pilot 
is  that  of  Wilson  v.  Charleston  Pilots'  Association,  57  Fed.  227. 
The  master  of  the  schooner  Kate  Aitken,  which  was  in  Charleston 


176  THE  LAW  OF  THE  SEA 

harbor  and  was  about  to  go  to  sea  in  tow  of  the  tug  Relief,  ap- 
plied to  the  Association  for  a  pilot,  and  Mr.  Bringloe  was  assigned 
to  him.  When  the  pilot  boarded  the  schooner  he  asked  the  mas- 
ter whether  he  preferred  the  pilot  to  be  on  the  tug  or  on  the 
schooner.  It  was  the  custom  to  put  the  pilot  on  the  tug,  unless 
the  master  wished  otherwise.  The  master  expressed  his  prefer- 
ence that  the  pilot  should  be  on  the  tug.  The  Court  remarked  in 
passing  "  that  if  disaster  occur  because  the  pilot  is  on  the  wrong 
boat  he  cannot  excuse  himself  by  reason  of  any  preference  of  the 
master.  He  is  employed  because  of  his  supposed  knowledge 
of  all  that  is  necessary  to  take  a  vessel  to  sea."  The  pilot  took 
his  place  on  the  tug  and  gave  direction  with  regard  to  the 
position  of  the  hawser.  He  took  his  position  on  the  top  of  the 
house  and  constantly  directed  the  movements  of  both  tug  and 
schooner.  Nevertheless  the  schooner  went  aground.  The  Court 
said : 

Is  the  pilot  responsible  in  damages  for  this  accident?  He  was  in 
control  of  the  movements  of  the  tug  and  of  the  tow.  He  was  charged 
with  the  safety  of  the  schooner,  and  of  all  that  she  carried,  being 
bound  to  use  due  diligence  and  care  and  reasonable  skill  in  the  exer- 
cise of  his  important  functions.  He  is  answerable  if  the  schooner 
suffered  damage  through  his  default,  negligence,  or  want  of  skill, 
while  her  helm  was  under  his  control.  He  was  not  an  insurer,  and 
is  only  chargeable  for  negligence  if  he  fail  in  due  knowledge,  care, 
or  skill  in  avoiding  obstructions  known  or  which  should  have  been 
known  to  him.  U  he  used  his  best  judgment  and  skill  in  avoiding 
known  dangers,  he  cannot  be  held  liable,  although  the  result  may 
show  that  his  judgment  was  wrong.  "  It  is  settled  that  if  the  occu- 
pation be  one  requiring  skill,  the  failure  to  exert  that  needful  skill, 
either  because  it  is  not  possessed  or  from  inattention,  is  gross  negli- 
gence." Curtis,  J.,  in  the  New  World  v.  King,  16  How.  (U.  S.)  469, 
An  eminent  text  writer,  whose  name  is  authority,  lays  down  the 
principle: 

"  Every  man  who  offers  his  services  to  another,  and  is  employed, 
assumes  to  exercise  in  the  employment  such  skill  as  he  possesses  with 
a  reasonable  degree  of  diligence.  In  all  these  employments  where 
peculiar  skill  is  requisite,  if  one  offer  his  services,  he  is  understood 
as  holding  himself  out  to  the  public  as  possessing  the  degree  of  skill 
commonly  possessed  by  others  in  the  same  employment,  and  if  his 
pretensions  are  unfounded  he  commits  a  species  of  fraud  on  every 
man  who  employs  him  in  reliance  on  his  public  profession.  But  no 
man,  whether  skilled  or  unskilled,  undertakes  that  the  task  he  assumes 
shall   be   performed   successfully   and   without    fault   or   error.     He 


TOWAGE  AND  PILOTAGE  177 

undertakes  for  good  faith  and  integrity,  but  not  for  infallibility ;  and 
he  is  liable  to  his  employer  for  negligence,  bad  faith,  or  dishonesty, 
but  not  for  losses  consequent  on  mere  error  of  judgment." 
This  is  the  law  of  this  case. 

There  is  a  total  absence  of  evidence  tending  to  show  want  of  knowl- 
edge, want  of  care,  or  want  of  skill,  or  bad  faith,  except  the  fact  of 
the  accident  itself.  This  is  not  a  case  in  which  the  fact  of  the  acci- 
dent is  conclusive  of  the  cause.  If  the  grounding  arose  from  the  act 
of  the  pilot,  it  was  by  an  error  of  judgment.  The  distinction  be- 
tween an  error  of  judgment  and  negligence  is  not  easily  determined. 
It  would  seem,  however,  that  if  one  assuming  a  responsibility  as  an 
expert  possesses  a  knowledge  of  facts  and  circumstances  connected 
with  the  duty  he  is  about  to  perform,  and  if  he  brings  to  bear  all  his 
professional  experience  and  skill,  weighs  these  facts  and  circum- 
stances, and  decides  upon  a  course  of  action  which  he  faithfully  at- 
tempts to  carry  out,  the  want  of  success,  if  due  to  such  course  of 
action,  would  be  attributed  to  error  of  judgment,  and  not  to  negli- 
gence. But  if  he  omits  to  inform  himself  as  to  facts  and  circum- 
stances, or  does  not  possess  the  knowledge,  experience,  or  skill  which 
he  professes,  then,  if  failure  is  caused  thereby,  this  would  be  negli- 
gence. But  it  does  not  appear  that  the  accident  was  occasioned  by 
an  error  of  judgment  on  the  part  of  the  pilot. 

13.  Liability  of  the  Ship. —  The  ship  will  be  liable  for  damage 
done  while  in  charge  of  a  pilot  unless  there  is  a  special  exemption 
by  local  law. 

Where  the  law  requires  the  ship  to  take  a  pilot  on  board  and  to 
surrender  the  navigation  of  the  ship  to  him,  the  master  arid  owners 
are  exempt  from  responsibility  for  damages  resulting  from  the 
mismanagement  of  the  pilot.  The  reason  is  this :  The  laws 
which  establish  such  compulsory  pilotage  are  intended  to  secure, 
as  far  as  possible,  protection  to  life  and  property,  by  supplying  a 
class  of  men  better  qualified  than  ordinary  mariners  to  take  charge 
of  ships  where  navigation  is  attended  with  unusual  difficulty  on 
account  of  local  conditions ;  the  master,  however  well  qualified,  is 
compelled  under  penalty  to  abdicate  his  authority  in  favor  of  the 
pilot,  and,  if  so,  it  is  unjust  that  either  he,  or  the  owner,  should  be 
personally  answerable  for  the  errors  of  an  official  in  whose  selec- 
tion he  had  no  choice.  The  responsibility  of  an  owner  for  the  acts 
of  his  servant  rests  upon  the  presumption  that  the  owner  chooses 
the  servant  and  gives  him  orders  which  he  is  bound  to  obey  and 
that  responsibility  ceases  when  the  law  supplants  the  owner's 
choice.     Therefore  neither  the  master  nor  the  owner  can  be  sue- 


178  THE  LAW  OF  THE  SEA 

cessfully  sued  at  common  law,  or  personally  in  the  admiralty,  for 
damage  done  by  a  compulsory  pilot.  This  was  held  on  a  full 
consideration  of  the  American  and  English  authorities  by  Justice 
Gray  in  Transportation  Co.  v.  La  Compagnie  Generale  Trans- 
atlantique,  182  U.  S.  406,  which  is  very  instructive  in  this  con- 
nection. 

The  ship,  however,  is  liable  for  such  damage,  although  in 
charge  of  a  compulsory  pilot.  The  reason  is  this :  By  American 
admiralty  law,  the  ship  is  treated  as  a  personality  for  many  pur- 
poses and,  in  whosesoever  hands  she  may  lawfully  be,  is  treated 
as  the  actual  wrongdoer,  irrespective  of  any  question  of  agency 
or  employment.  Thus,  in  this  country,  the  ship  by  whose  fault  a 
collision  has  occurred  may  be  sued  directly,  although  in  charge 
of  a  compulsory  pilot  at  the  time  the  disaster  occurred.  In  Eng- 
land the  rule  is  different  and  the  ship  is  not  liable  if  the  owner 
could  not  be  sued.  The  leading  American  case  on  this  point  is 
that  of  the  China,  7  Wall.  53.  The  China,  while  under  the  con- 
trol of  a  compulsory  pilot,  was  in  collision  with  the  brig  Kentucky, 
which  was  wholly  free  from  blame.  On  a  review  of  the  English 
and  American  authorities  the  Court  (Swayne,  J.)  held: 

The  services  of  the  pilot  are  as  much  for  the  benefit  of  the  vessel 
and  cargo  as  those  of  the  captain  and  crew.  His  compensation  comes 
from  the  same  source  as  theirs.  Like  them  he  serves  the  owner  and 
is  paid  by  the  owner.  If  there  be  any  default  on  his  part,  the  owner 
has  the  same  remedies  against  him  as  against  other  delinquents  on 
board.  The  difference  between  his  relations  and  those  of  the  master 
is  one  rather  of  form  than  substance. 

•  •  •  •  ' 

The  maxim  of  the  civil  law  —  sic  utere  tuo  ut  alienum  non  laedas  — 
may,  however,  be  fitly  applied  in  such  cases  as  the  one  before  us.  The 
remedy  of  the  damaged  vessel,  if  confined  to  the  culpable  pilot,  would 
frequently  be  a  mere  delusion.  He  would  often  be  unable  to  respond 
by  payment  —  especially  if  the  amount  recovered  were  large.  Thus, 
where  the  injury  was  the  greatest  there  would  be  the  greatest  danger 
of  a  failure  of  justice.  According  to  the  admiralty  laAV,  the  collision 
impresses  upon  the  wrong-doing  vessel  a  maritime  lien.  This  the 
vessel  carries  with  it  into  whosesoever  hands  it  may  come.  It  is 
inchoate  at  the  moment  of  the  wrong  and  must  be  perfected  by  subse- 
quent proceedings.  Unlike  a  common  law  lien,  possession  is  not 
necessary  to  its  validity.  It  is  rather  in  the  nature  of  the  hypothe- 
cation of  the  civil  law.  It  is  not  indelible,  but  may  be  lost  by  laches 
or  other  circumstances. 


TOWAGE  AND  PILOTAGE  179 

The  proposition  of  the  appellants  would  blot  out  this  important  fea- 
ture of  the  maritime  code,  and  greatly  impair  the  efficacy  of  the  sys- 
tem. The  appellees  are  seeking  the  fruit  of  their  lien.  All  port 
regulations  are  compulsory.  The  provisions  of  the  statute  of  New 
York  are  a  part  of  a  series  within  that  category,  A  damaging  vessel 
is  no  more  excused  because  she  was  compelled  to  obey  one  than  an- 
other. The  only  question  in  all  such  cases  is,  was  she  in  fault?  The 
appellants  were  bound  to  know  the  law.  They  cannot  plead  igno- 
rance. The  law  of  the  place  makes  them  liable.  This  ship  was 
brought  voluntarily  within  the  sphere  of  its  operation,  and  they  can- 
not complain  because  it  throws  the  loss  upon  them  rather  than  uiX)n 
the  owners  of  the  innocent  vessel.  We  think  the  rule  which  works 
this  result  is  a  wise  and  salutary  one,  and  we  feel  no  disposition  to 
disturb  it, 

REFERENCES  FOR  GENERAL  READING 

Admiralty,  Hughes,  1 17-124;  28-38. 
Admiralty  Reports,  Brown,  Williams,  208. 
Sturgis  V.  Boyer,  24  How.  no. 
Collisions,  Marsden,  Chapter  VIII. 
Webb,  14  Wall.  406. 


/ 


CHAPTER  XIII 
SALVAGE  AND  GENERAL  AVERAGE 

1.  Definitions. —  Salvage  may  be  defined  as  a  legal  liability 
which  is  created  by  the  rescue  of  maritime  property  from  perils 
of  the  sea.  It  may  be  quite  independent  of  contract  or  agreement 
and  these  do  not  affect  its  nature.  The  word  also  designates  the 
reward  or  compensation  for  the  rescue  and,  sometimes,  the  prop- 
erty which  is  saved.  Its  essentials  are  maritime  property  in  peril 
and  a  voluntary  successful  effort  to  save  it.  From  the  standpoint 
of  the  owner  of  the  property,  it  is  the  price  of  safety. 

The  ingredients  of  a  salvage  service  are,  first,  enterprise  in  the 
salvors  in  going  out  in  tempestuous  weather  to  assist  a  vessel  in  dis- 
tress, risking  their  own  lives  to  save  their  fellow-creatures,  and  to 
rescue  the  property  of  their  fellow-subjects;  secondly,  the  degree  of 
danger  and  distress  from  which  the  property  is  rescued  —  whether  it 
were  in  imminent  peril,  and  almost  certain  to  be  lost  if  not  at  the 
time  rescued  and  preserved;  thirdly,  the  degree  of  labor  and  skill 
which  the  salvors  incur  and  display,  and  the  time  occupied.  Lastly, 
the  value.  Where  all  these  circumstances  concur,  a  large  and  liberal 
reward  ought  to  be  given;  but  where  none,  or  scarcely  any  take 
place,  the  compensation  can  hardly  be  denominated  a  salvage  compen- 
sation: it  is  little  more  than  a  remuneration  pro  opere  ct  labore  (The 
Clifton,  3  Hagg.  Adm.  14,  48  [quoted  with  approval  in  Cope  v.  Dry- 
dock  Co.,  119  U.  S.  625]), 

General  Average  is  also  the  price  of  safety  under  different  cir- 
cumstances. It  is  the  contribution  required  of  the  parties  inter- 
ested in  a  maritime  venture  to  compensate  the  sacrifice  of  a  part 
for  the  safety  of  the  rest.  The  typical  instance  is  the  jettison  of 
cargo  in  order  that  the  ship  may  be  saved;  the  loss  is  equalized 
by  a  general  average. 

2.  What  May  Be  Salved. —  The  subject  of  salvage  can  only  be 
vessels  and  property  that  is  or  has  been  on  board  a  vessel.  In 
Chapter  I,  §  4,  there  is  some  discussion  of  what  constitutes  a  ship 
within  the  meaning  of  the  law.  In  Cope  v.  Drydock  Co.,  119 
U.  S.  625,  salvage  was  claimed  rescuing  a  floating  drydock,  which 
had  been  in  collision  with  a  steamship  and  was  on  the  point  of 

180 


SALVAGE  AND  GENERAL  AVERAGE     i8i 

sinking.  The  Court  held  that  the  service  performed  was  not  sal- 
vage because  the  drydock  was  not  a  vessel  and  not  a  salvable 
thing.  Justice  Bradley  said  that  a  dock,  though  floating,  was  not 
used  for  the  purpose  of  navigation  and  that  "  no  structure  that 
is  not  a  ship  or  vessel  is  a  subject  of  salvage,"  adding: 

A  ship  or  vessel,  used  for  navigation  and  commerce,  though  lying 
at  a  wharf,  and  temporarily  made  fast  thereto,  as  well  as  her  furni- 
ture and  cargo,  are  maritime  subjects,  and  are  capable  of  receiving 
salvage  service. 

If  we  search  through  all  the  books,  from  the  Rules  of  Oleron  to 
the  present  time,  we  shall  find  that  salvage  is  only  spoken  of  in  rela- 
tion to  ships  and  vessels  and  their  cargoes,  or  those  things  which  have 
been  committed  to,  or  lost  in,  the  sea  or  its  branches,  or  other  public 
navigable  waters,  and  have  been  found  and  rescued. 

There  has  been  some  conflict  of  decision  with  respect  to  claims  for 
salvage  service  in  rescuing  goods  lost  at  sea  and  found  floating  on 
the  surface  or  cast  upon  the  shore.  When  they  have  belonged  to  a 
ship  or  vessel  as  part  of  its  furniture  or  cargo  they  clearly  come 
under  the  head  of  wreck,  flotsam,  jetsam,  ligan,  or  derelict,  and  sal- 
vage may  be  claimed  upon  them.  But  when  they  have  no  connection 
with  a  ship  or  vessel  some  authorities  are  against  the  claim,  and 
others  are  in  favor  of  it. 

It  was  held  by  the  Supreme  Court  of  the  United  States  (The 
Jefferson,  215  U.  S.  130)  that  where  a  vessel,  laid  up  in  drydock 
in  a  shipyard  for  repairs,  was  saved  from  destruction  by  a  fire, 
which  was  raging  in  the  shipyard,  by  tug  boats  in  the  stream  which 
played  streams  of  water  from  the  stream  upon  the  endangered 
vessel,  it  was  a  case  of  salvage.  The  Court  after  remarking  that 
a  maritime  Hen  for  repairs  existed  against  a  vessel  in  drydock, 
said : 

There  is  no  distinction  between  the  continued  control  of  admiralty 
over  a  vessel  when  she  is  in  a  drydock  for  the  purpose  of  being  re- 
paired, and  the  subjection  of  the  vessel  when  in  a  drydock  for  repairs 
to  the  jurisdiction  of  a  court  of  admiralty  for  the  purpose  of  passing 
upon  claims  for  salvage  services,  by  which  it  is  asserted  the  vessel, 
while  in  the  dock,  was  saved  from  destruction. 

3.  Salvor's  Lien. —  Whoever  performs  a  salvage  service  ac- 
quires a  maritime  lien  of  the  highest  rank  upon  the  property  saved 
for  this  compensation.  This  lien  is  quite  independent  of  posses- 
sion and  will  be  enforced  by  a  court  of  admiralty  by  a  proceeding 


i82  THE  LAW  OF  THE  SEA 

in  rem,  i.e.,  against  the  ship.  Ordinarily  it  is  the  salvor's  duty 
promptly  to  place  the  property  in  possession  of  the  court  by  libel- 
ing it  for  salvage  at  his  first  opportunity  for  such  an  award  as  the 
court  shall  deem  just.  This  will  usually  be  his  only  remedy,  in 
the  absence  of  an  express  contract.  There  is  no  personal  lia- 
bility against  the  owner  of  the  property  saved  unless  he  requested 
performance  of  the  service  or  received  the  property  with  knowl- 
edge of  the  claim. 

4.  Amount  of  Reward. —  The  amount  of  salvage  is  usually 
regulated  by  the  value  of  the  property  saved  and  the  value  of  that 
engaged  in  the  operation ;  the  degree  of  risk  or  peril  and  the  time 
and  expense  of  the  salvors.  The  expenses  of  volunteer  salvors 
cannot  be  recovered  as  such,  though  the  court  may  take  them  into 
consideration  in  fixing  the  amount  of  the  award.^  Success  is 
essential.  There  can  be  no  salvage  award  for  the  most  meritori- 
ous efforts  if  unsuccessful.  It  is  the  policy  of  the  admiralty  to 
stimulate  efforts  for  the  rescue  of  property  in  distress  by  liberal 
rewards  and  also  to  discourage  exorbitant  demands  and  inequitable 
behavior  by  correspondingly  reducing  them.  In  the  case  of  the 
Sandringham,  10  Fed.  556,  the  court  listed  the  factors  involved  in 
determining  the  amount  to  be  awarded  as  salvage  as  follows : 

(i)  The  degree  of  danger  from  which  the  lives  or  property 
are  rescued. 

(2)  The  value  of  the  property  saved. 

(3)  The  risk  incurred  by  the  salvors. 

(4)  The  value  of  the  property  employed  by  the  salvors  in 

the  wrecking  enterprise,  and  the  danger  to  which  it 
was  exposed. 

(5)  The  skill  shown  in  rendering  the  service. 

(6)  The  time  and  labor  occupied. 

(7)  The  degree  of  success  achieved,  and  the  proportions  of 

value  lost  and  saved. 

Work  of  this  nature  is  often  performed  by  contract,  by  vessels 
and  corporations  equipped  and  organized  for  the  purpose.  This 
fact  does  not  militate  against  their  claims  as  salvors  in  proper 
cases  but  the  courts  will  not  hesitate  to  modify  the  contract  if  they 
consider  it  unjust.     The  case  of  the  Leamington,  86  Fed.  675, 

iTeutonia  v.  Erlanger,  248  U.  S.  521. 


SALVAGE  AND  GENERAL  AVERAGE     183 

contains  a  note  giving  many  instances  of  amounts  awarded  under 
various  circumstances.- 

As  a  general  thing  salvage  is  not  allowed  in  an  amount  exceed- 
ing 50  per  cent  of  the  value  of  the  thing  salved,  although  there 
are  cases  where  as  high  as  75  per  cent  has  been  allowed.  There 
was  an  old  rule,  "  50  per  cent  for  a  derelict."  This  rule  has  been 
departed  from  in  many  cases.  The  amount  to  be  awarded  lies 
largely  in  the  sound  discretion  of  the  trial  court  which  takes  into 
consideration  all  of  the  elements  of  labor,  risk,  value,  time,  ex- 
pense, and  any  other  features  that  may  enter  into  the  case.  It 
is  practically  impossible  to  lay  down  rules  for  determining  the 
amount  to  be  awarded.  The  books,  however,  say  that  the  award 
should  not  be  so  great  that  the  salvage  service  becomes  of  no  use 
to  the  owner  of  the  lUiing  salved.  For  example  if  the  charges 
and  expenses  of  the  owner  come  to  50  per  cent  of  the  value  of 
the  thing  salved,  an  award  of  50  per  cent  will  not  be  made  to  the 
salvors,  no  matter  how  perilous,  arduous  and  meritorious  their 
work  may  have  been  to  the  owners.  Sometimes  the  award  when 
computed  on  percentage  of  the  value  of  the  salved  property  is 
very  small,  in  some  cases  only  about  4  per  cent.  These  are  cases 
where  the  service  performed  was  not  extensive  or  highly  meri- 
torious and  the  salvage  property  was  of  large  value,  so  that  the 
amount  of  money  received  by  the  salvors  was  considerable,  though 
the  percentage  was  small.  The  amount  awarded  to  salvors  is  not 
always  calculated  on  the  basis  of  a  percentage  or  proportion  of 
the  value  salved;  in  many  cases  the  trial  court  fixes  a  flat  figure 
which  it  thinks  the  service  worth. 

5.  Who  May  Be  Salvors. —  Generally,  any  one  not  under  obli- 
gation to  render  the  service,  may  rank  as  a  salvor,  and,  con- 
versely, those  obliged  to  work,  cannot  claim  any  reward.  Sailors 
on  the  ship  in  peril  cannot  be  salvors  until  released  from  their  en- 
gagement or  an  abandonment  of  the  ship.  A  passenger  cannot 
earn  salvage  by  mere  labor  on  a  vessel  in  peril,  for  this  is  his  duty, 
yet  for  extraordinary  services  he  may  have  a  salvage  award. 
Such  was  the  case  of  the  Great  Eastern  when  she  had  been  dis- 
abled by  a  gale  and  was  lying  helpless  in  the  trough  of  the  sea. 
Among  the  passengers  was  a  civil  engineer  who  ingeniously  de- 
vised and  after  twenty-four  hours'  labor  carried  out  a  plan  for 

*  See  §  10,  this  title,  infra. 


i84  THE  LAW  OF  THE  SEA 

steering  her  so  that  she  was  able  to  make  port.  The  court 
awarded  him  about  $15,000.  So,  in  the  Fair  American,  captured 
by  a  French  privateer  and  in  charge  of  a  prize-crew,  her  cook  suc- 
ceeded in  recapturing  and  bringing  her  into  port  by  exertions  out- 
side his  Hne  of  duty,  and  ranked  as  a  salvor  accordingly, 

A  pilot  acting  within  the  line  of  his  duty,  however  he  may 
entitle  himself  to  extraordinary  pilotage  compensation  as  distinct 
from  ordinary  pilotage  for  ordinary  services,  cannot  be  entitled 
to  claim  salvage,  but  a  pilot  is  not  disabled  from  becoming  a 
salvor  if  he  performs  salvage  services  outside  the  scope  of  his 
duties.  He  stands  in  the  same  relation  to  the  property  as  any 
other  salvor  (Hobart  et  al.  v.  Drogan,  10  Peters  108). 

6,  Distinction  Between  Towage  and  Salvage. —  Cases  have 
frequently  arisen  in  w4iich  a  vessel  that  has  towed  another  into  a 
place  of  safety  has  claimed  salvage  for  so  doing.  Whether  or  not 
the  service  rendered  amounts  to  salvage  and  entitles  the  towing 
vessel  to  a  salvage  reward,  or  is  mere  towage  to  be  recompensed 
as  such,  is  sometimes  difficult  to  determine.  There  is  no  fixed 
guide.     In  the  J.  C.  Pfluger,  109  Fed.  93,  the  Court  said : 

If  the  vessel  towed  was  by  this  means  aided  in  escaping  from  a 
present  or  prospective  danger,  the  service  will  be  regarded  as  one  of 
salvage,  and  the  towage  as  merely  an  incident.  If,  upon  the  other 
hand,  the  vessel  thus  assisted  was  not  encompassed  by  any  immediate 
or  probable  future  peril,  such  service  will  be  treated  as  one  of  towage 
merely,  and  compensated  as  such.  It  was  said  by  Dr.  Lushington 
(The  Charlotte,  3  W.  Rob.  Adm.  68)  that,  in  order  to  constitute  a 
salvage  service,  it  is  "  not  necessary  that  the  distress  should  be  actual 
or  immediate,  or  the  danger  imminent  and  absolute;  it  is  sufficient  if, 
at  the  time  the  assistance  is  rendered,  the  ship  has  encountered  any 
damage  or  misfortune  which  might  possibly  expose  her  to  destruc- 
tion if  the  service  were  not  rendered."  In  McConochie  v.  Kerr 
(D,  C.  9  Fed.  50),  Judge  Brown,  in  pointing  out  the  distinction  be- 
tween a  salvage  and  towage  service,  said : 

"  A  salvage  service  is  a  service  which  is  voluntarily  rendered  to  a 
vessel  needing  assistance,  and  is  designed  to  relieve  her  from  some 
distress  or  danger,  either  present  or  to  be  reasonably  apprehended. 
A  towage  service  is  one  which  is  rendered  for  the  mere  purpose  of 
expediting  her  voyage,  without  reference  to  any  circumstances  of 
danger." 

In  the  case  of  th€  Emily  B.  Souder,  15  Blatch.  185,  Fed.  Cas.  No. 
4,458,  Chief  Justice  Waite  stated  the  law  upon  this  point  as  follows: 

"  It  is  well  settled  that,  if  there  is  not  actual  or  probable  danger, 
and  the  employment  is  simply  for  the  purpose  of  expediting  the  voy- 
age, such  service  is  towage  and  not  salvage." 


SALVAGE  AND  GENERAL  AVERAGE     185 

Under  the  plain  and  well-settled  rule  declared  in  the  foregoing 
cases,  whether  a  particular  service  was  one  of  salvage  or  towage  is 
always  a  question  of  fact  to  be  ascertained  from  a  consideration  of 
the  circumstances  under  which  the  court  shall  find  the  service  was 
rendered;  and,  unless  the  evidence  shows  that  the  vessel  towed  was 
thereby  assisted  in  getting  safely  away  from  some  actual  or  appre- 
hended peril,  the  case  is  not  one  in  which  salvage  has  been  earned. 

In  the  Reward,  i  W.  Rob.  174,  a  distinguished  English  judge 
laid  it  down  that, 

Mere  towage  service  is  confined  to  vessels  that  have  received  no 
injury  or  damage;  and  mere  towage  reward  is  payable  in  those  cases 
only  where  the  vessel  receiving  the  service  is  in  the  same  condition 
she  would  ordinarily  be  in  without  having  encountered  any  damage 
or  accident. 

7.  Distribution  of  Salvage  Award. —  The  rule  of  the  admiralty 
is  that  all  who  materially  contribute  to  the  rescue  are  entitled  to 
share  in  the  award.  Thus  the  master  and  crew  of  the  salving 
vessel  are  entitled  to  participate  with  the  owner,  according  to  their 
individual  exertions  and  success.  The  owner  should  not  appro- 
priate the  whole  unless  the  crew  were  especially  employed  for  the 
work.  The  court  will  freqently  divide  the  amount  between  the 
owner  and  the  crew  and  apportion  the  share  of  the  latter  in  pro- 
portion to  their  wages.  The  principal  element  in  determining  the 
owner's  share  is  the  value  of  the  ship  and  the  risk  to  which  it  was 
exposed.  Under  special  circumstances  the  cargo-owner  may  also 
participate. 

Where  the  salving  vessel  is  a  steamer  the  owners'  share  of  the 
salvage  is  larger  and  that  of  the  crew  proportionately  smaller  than 
if  she  were  a  sailing  vessel  or  other  craft  because  of  the  superior 
efficiency  of  a  steamer  in  salvage  work.  Credit  and  compensation 
for  the  superior  character  of  the  salving  vessel  must  go  to  her 
owners.  In  Transportation  Co.  v.  Pearsall,  90  Fed.  435,  there 
is  a  discussion  of  salvage  distribution.  In  that  case  three  tugs, 
all  belonging  to  the  same  owner,  had  salved  a  steamer  which  had 
gone  ashore.  The  owner  of  the  tugs  affected  a  settlement  with 
the  owners  of  the  steamer  and  received  $13,000  in  full  of  all 
demands.  A  libel  in  personam  against  the  master  and  owner  of 
the  ttigs  was  brought  by  the  engineer  and  fireman  of  the  third, 
each  claiming  a  share  of  the  $13,000.  The  court  decided  that  the 
owner  of  the  tugs  was  entitled  to  two-thirds  of  the  salvage  award, 
and  ordered  the  remaining  one-third  to  be  distributed  among  the 


i86  THE  LAW  OF  THE  SEA 

masters  and  crews  of  the  tugs  proportionately,  awarding  the 
engineer  $500  and  the  other  hbellantls  $200  apiece,  these  awards 
being  in  proportion  to  their  wages.  The  court  remarked  that 
under  the  rule  once  prevailing  in  admiralty  the  owners  of  the 
salving  vessel  could  not  receive  more  than  one-third  of  the  award 
unless  there  were  unusual  circumstances  of  peril  to  the  salving 
vessel,  that  that  rule  had  been  modified  in  the  direction  of  greater 
liberality  to  steamships,  citing  cases  in  which  the  share  of  the 
salving  vessel  had  been  fixed  at  three-fourths  and  even  four-fiftlis. 
The  Court  said: 

An  examination  of  the  cases  will  show  that  there  is  no  fixed  rule 
with  regard  to  the  proportion  in  the  salvage  award  allotted  to  the 
owners  of  the  salving  vessel.  Most  frequently  salvage  services  are 
rendered  upon  a  voyage,  in  the  absence  of  the  owners,  and  when  the 
salving  vessel  is  under  the  charge  of,  and  is  controlled  by,  the  master 
and  crew.  As  salvage  is  awarded  for  the  encouragement  of  prompt- 
ness, energy,  efficiency,  and  heroic  endeavor  in  saving  life  and  prop- 
erty in  peril,  the  claims  of  the  master  and  crew  who  exhibited  these 
qualities  must  meet  the  most  favorable  consideration.  At  the  same 
time  an  allowance  is  made  for  the  owners  whose  property  has  been 
imperiled.  But  when  the  owners  direct  the  service,  or  when  the 
peril  encountered  is  chiefly  that  of  the  salving  vessel,  with  no  pro- 
portionate peril  to  the  crew,  an  award  to  the  owners  is  more  liberal. 

It  was  also  said  that  the  making  of  distribution  in  proportion  to 
the  wages  is  a  "  just  and  uniform  rule  in  all  ordinary  cases." 

Where  salvage  is  performed  by  successive  sets  of  salvors, — 
for  instance,  if  one  set  of  salvors  gets  a  ship  off  a  reef,  and  a 
second  set  takes  her  into  port  —  the  award  is  apportioned  be- 
tween the  two  sets,  special  consideration  being  shown  to  the  first 
set  of  salvors  because  they  made  the  work  of  the  second  possible. 

8.  Distribution  of  Liability  for  Payment. —  The  vessel,  cargo, 
and  freight  money  saved  are  to  contribute  to  the  payment!  of  the 
salvage  award  according  to  their  relative  values  at  the  port  of 
rescue.  As  between  the  ship  and  cargo,  each  is  liable  for  its  own 
proportion  alone.  The  salvor  cannot  recover  the  entire  salvage 
from  either,  but  only  the  proportion  for  which  respondent  is 
liable.  As  was  said  by  Justice  Story  in  Stratton  v.  Jarvis,  8 
Peters  4 : 

It  is  true  that  the  salvage  service  was  in  one  sense  entire;  but  it 
certainly  cannot  be  deemed  entire  for  the  purpose  of  founding  a 
right  against  all  the  claimants  jointly,  so  as  to  make  them  all  jointly 


SALVAGE  AND  GENERAL  AVERAGE     187 

responsible  for  the  whole  salvage.  On  the  contrary,  each  claimant  is 
responsible  only  for  the  salvage  properly  due  and  chargeable  on  the 
gross  proceeds  or  sales  of  his  own  property  pro  rata.  It  would  other- 
wise follow  that  the  property  of  one  claimant  might  be  made  charge- 
able with  the  payment  of  the  whole  salvage,  which  would  be  against 
the  clearest  principles  of  law  on  this  subject. 

Where  a  ship  is  saved  and  unable  to  continue  her  voyage  and 
carry  out  her  contracts  of  affreightment,  the  freight  is  one  of  the 
things  of  value  saved,  but  in  determining  the  value  of  the  freight 
saved  for  the  purpose  of  assessing  a  salvage  award  against  it, 
"  the  freight  to  be  considered  is  only  such  proportion  of  the 
freight  earned  by  the  entire  voyagie  as  the  distance  at  which  the 
salvage  service  was  rendered  from  the  port  of  departure  bears  to 
the  whole  voyage."     The  Sandringham,  10  Fed.  556. 

9.  Statutory  Regulations. —  By  the  Act  of  August  i,  1912, 
(7  U.  S.  Comp  St.  §§  7990-7994)  it  is  provided  that  the  right  to 
remuneration  for  salvage  services  shall  not  be  affected  by  the 
fact  that  the  same  person  owns  both  vessels ;  that  the  master  must 
render  assistance  to  every  person  found  at  sea  who  is  in  danger  of 
being  lost,  so  far  as  he  can  do  so  without  serious  danger  to  his 
own  vessel,  under  penalty  of  not  exceeding  one  thousand  dollars 
or  imprisonment  not  exceeding  two  years,  or  both;  that  salvors 
of  human  life  are  entitled  to  share  in  the  award;  that  salvage 
suits  must  be  brought  within  two  years ;  and  that  nothing  in  the 
Act  shall  apply  to  ships  of  war  or  Government  ships  on  public 
duty. 

10.  Instances  of  Salvage  Services. —  Where  a  fishing  schooner 
on  the  Atlantic  picked  up  a  floating  body  on  which  was  a  wallet 
containing  a  considerable  sum  of  money  and  promptly  delivered 
the  treasure  to  the  court,  they  were  awarded  one-half  the  amount, 
to  be  apportioned  one-third  to  the  owners  of  the  fishing  vessel, 
one-third  to  the  master  and  one-third  to  the  crew;  the  master's 
share  was  made  somewhat  larger  because  he  had  resisted  the 
proposal  of  some  of  the  crew  to  merely  divide  the  coin  and  say 
nothing.  The  balance  was  turned  over  to  the  public  administra- 
tor of  Massachusetts  to  hold  for  the  benefit  of  the  unknown  heirs, 
and,  if  they  failed  to  appear,  for  further  disposition  according  to 
law  (Gardner  v.  Gold  coins,  iii  Fed.  552).  The  Egyptian 
obelisk,  now  in  London  and  known  as  "  Cleopatra's  Needle," 
became  the  subject  of  salvage  services  in  the  Bay  of  Biscay,  dur- 
ing its  voyage  from  Alexandria  and  the  award  was  two  thousand 


i88  THE  LAW  OF  THE  SEA 

pounds  (see  Dixon  v.  Whitworth,  4  Asp.  M.  L.  C.  138,  327).  In 
the  Jefferson,  215  U.  S.  130,  the  vessel  was  in  a  drydock  and 
threatened  by  a  conflagration  on  adjoining  property ;  tugs  stood  by 
and  played  streams  from  their  hose  upon  her  until  the  danger  was 
past.  The  court  overruled  the  argument  that  the  service  could 
not  be  salvage  because  the  vessel  was  not  afloat  and  directed  an 
award.  Where,  however,  a  steamer  had  been  swept  high  and 
dry  on  the  shore  about  a  hundred  feet  above  high-water  mark  and 
lay  there  five  years,  the  court  declined  to  consider  as  salvage  the 
plan  and  w^ork  of  floating  her  by  dredging  out  a  basin  and  canal  for 
her  flotation ;  she  had  ceased  to  be  engaged  in  commerce  and  nav- 
igation and  the  contract  was  not  maritime  (Skinner,  248  Fed.  818). 
The  doctrine  of  this  case  will  probably  not  be  extended  beyond  its 
own  facts.  In  the  Burlington,  y2>  Fed.  258,  where  the  ship  had 
been  stranded  to  put  out  a  fire  and  lay  as  a  menace  to  navigation 
while  the  owner  and  underwriters  were  in  dispute  as  to  his  right 
to  abandon,  and  the  salvor  brought  her  safely  into  port,  he  was 
awarded  the  entire  value  as  salvage ;  while  in  Murphy  v.  Dunham, 
38  Fed.  503,  where  the  salvor  proceeded  on  the  erroneous  idea 
that  the  cargo-owner's  title  is  extinguished  when  his  property 
sinks,  and  salved  it  for  his  own  use,  he  was  only  allowed  his  ex- 
penses and  narrowly  escaped  being  assessed  for  the  full  value. 
The  Albany,  44  Fed.  431,  is  another  instance  of  the  persistence  of 
the  old  notion  that  title  is  acquired  by  finding  property  lost  at  sea ; 
the  ship  had  stranded  and  the  master  was  jettisoning  a  valuable 
cargo  of  package  freight;  the  countryside  swarmed  with  wagons 
and  lighters  to  appropriate  what  could  be  obtained.  The  Court 
held  the  parties  as  for  embezzlement  and  said  there  was  a  medie- 
val flavor  about  their  conduct  which  recalled  to  a  student  of  mari- 
time law  the  customs  of  the  ancient  Gauls,  who  not  only  appropri- 
ated the  cargoes  of  vessels  wrecked  on  their  coasts  but  sold  their 
crews  into  slavery  or  sacrificed  them  to  their  gods.  The  Court 
quoted  the  following  succinct  statement  of  the  nature  of  salvage 
from  Mr.  Justice  Story: 

In  cases  of  salvage,  the  party  founds  himself  upon  a  meritorious 
service,  and  upon  an  implied  understanding  that  he  brings  before 
the  court,  for  its  final  award,  all  the  property  saved,  with  entire  good 
faith,  and  he  asks  a  compensation  for  the  restitution  of  it  uninjured 
and  unembezzled  by  him.  The  merit  is  not  in  saving  the  property 
alone,  but  it  is  in  saving  and  restoring  it  to  the  owners.  However 
meritorious  the  act  of  saving  may  have  been,  if  the  property  is  subse- 


SALVAGE  AND  GENERAL  AVERAGE     189 

quently  lost,  and  never  reaches  the  owner,  no  compensation  can  be 
claimed  or  decreed. 

11.  Distinction  Between  General  and  Particular  Average. — 

The  former  is  a  partial  loss,  voluntarily  incurred  for  common 
safety,  and  recompensed  by  all  benefited  thereby ;  the  latter  is 
a  partial  loss  involuntarily  caused,  which  must  be  borne  by  the 
party  on  whom  it  falls.  One  of  the  most  approved  definitions  of 
general  average  is, — "  All  loss  which  arises  in  consequence  of 
extraordinary  sacrifices  made,  or  expenses,  incurred,  for  the  pres- 
ervation of  the  ship  and  cargo,  comes  within  general  average,  and 
must  be  borne  proportionately  by  all  who  are  interested." 

In  the  case  of  Barnard  v.  Adams,  10  How.  (U.  S.)  270,  the  in- 
gredients of  general  salvage  were  thus  stated: 

In  order  to  constitute  a  case  for  general  average,  three  things  must 
concur : 

I  St.  A  common  danger;  a  danger  in  which  the  ship,  cargo  and 
crew  all  participate ;  a  danger  imminent  and  apparently  "  inevitable,' 
except  by  voluntarily  incurring  the  loss  of  a  portion  of  the  whole  to 
save  the  remainder. 

2nd.  There  must  be  a  voluntary  jettison,  jactus,  or  casting  away, 
of  some  portion  of  the  joint  concern  for  the  purpose  of  avoiding  this 
imminent  peril,  periculi  imminentis  evitandi  causa,  or,  in  other  words, 
a  transfer  of  the  peril  from  the  whole  to  a  particular  portion  of  the 
whole. 

3rd.  This  attempt  to  avoid  the  imminent  common  peril  must  be 
successful. 

12.  Essential  Elements.— The  i;ule  expresses  the  plainest 
principles  of  common  justice  but  is  confined  to  maritime  law  and 
within  somewhat  precise  limitations.  The  sacrifice  for  which 
contribution  is  sought  must  be  directed  by  the  master  of  the  ship 
or  by  his  authority ;  ^  it  must  be  voluntary  and  for  the  safety  of  the 
entire  venture*  it  must  be  necessary  and  successful  f  and  neither 

3  The  reason  is  that  the  master  "  derives  his  authority  from  the  implied 
consent  of  all  concerned  in  the  common  adventure"  (The  Hornet,  17 
How.  100).  "The  character  of  agent  respecting  the  cargo  is  thrown  upon 
the  master  by  the  policy  of  the  law,  acting  on  the  necessity  of  the  cir- 
cumstances in  which  he  is  placed"  (The  Gratitudine,  3  C.  Rob.  Adm.  240). 

*  "  Where  the  sacrifice,  while  for  the  general  benefit  of  the  whole  adven- 
ture, was  also  for  the  particular  benefit  of  the  cargo,  it  was  not  a  subject 
of  general  average"  (The  Mary,  i  Sprague  19). 

5  Expenses  voluntarily  and  successfully  incurred,  or  the  necessary  con- 
sequences of  resolution  voluntarily  and  successfully  taken,  by  a  person  in 
charge  of  a  sea  adventure,  for  the  safety  of  life,  ship  and  cargo,  under  the 
pressure  of  a  danger  of  total  loss  or  destruction  imminent  and  common 
to  them,  give,  the  ship  being  saved,  a  claim  to  general  average  contribu- 
tion (Abbott  on  Shipping,  537,  note). 


I90  THE  LAW  OF  THE  SEA 

the  party  whose  fault  occasioned  the  loss  nor  any  outside  of  the 
interests  represented  in  the  ship  and  cargo  can  have  contribution.^ 
Thus  the  scuttling  of  a  ship  by  order  of  port  authorities  to  ex- 
tinguish a  fire  in  the  hold  is  not  general  average,  although  it  would 
have  been  if   done  by  order  of   the  master.     If  the  vessel   is 
stranded  by  force  of  wind  or  current,  there  is  no  general  average 
loss,  while  if  the  master  deliberately  puts  her  ashore,  choosing  the 
locality  to  escape  a  greater  danger,  it  will  be  considered  a  case  for 
general  average  by  American  law.     Where  the  master  threw  over- 
board a  quantity  of  coin,  not  to  save  the  ship  and  cargo,  but  to 
prevent  the  money  falling  into  enemy  hands,  it  was  not  general 
average  although  it  would  have  been  if  his  purpose  had  been  to 
lighten  the  ship  in  order  to  escape.     Where  the  sacrifice  is  not 
necessary,  in  a  pecuniary  sense,  for  the  common  safety,  it  is  not 
allowed,  as  where  a  vessel  met  a  foundering  emigrant  ship  and 
threw  overboard  part  of  its  cargo  in  order  to  take  the  passengers 
on  board ;  this  was  not  a  general  average  loss  entitling  the  owner 
of  the  cargo  to  contribution.     When  the  sacrifice  is  unsuccessful 
there  is  no  general  average,  as  where  the  master  of  a  ship  which 
was  dragging  her  anchors  cut  away  the  masts  to  prevent  the 
drifting,  but  she  finally  went  ashore;  and  where  the  cause  of  the 
sacrifice  is  a  fault  of  the  ship  or  defect  in  the  cargo,  contribution 
is  denied ;  so  also  when  a  tug  cuts  the  towline  of  her  barges  in  a 
storm  to  save  herself  from  going  ashore  with  them  and  thereby 
saves  herself. 

13.  Instances  of  General  Average.— The  classic  example^ 
is  throwing  overboard  (or,  as  it  was  called,  jettisoning)  a  part  of 
the  cargo  in  order  to  escape  a  storm.  Thus  if  there  is  a  ship 
worth  $20,000,  freight  list,  $10,000,  and  cargo  $70,000,  of  which 
X  owns  $30,000,  Y  $20,000,  and  Z  $20,000,  and  $10,000  of  X's 
goods  were  jettisoned,  each  interest,  including  X,  will  bear  10 
per  cent  of  the  sacrifice;  the  ship  pays  X  $2,000;  the  freight  list 
pays  him  $1,000;  and  Y  and  Z  pay  him  $2,000  each;  he  receives 
$7,000  and  stands  $3,000  and  so  the  sacrifice  is  equally  borne  by 
all.     Cargo  may  be  burnt  as  fuel,  or  lost  by  a  sale  or  pledge  to 

8  Thus  where  a  tug  abandoned  her  tow  in  order  to  save  the  tug;  the 
owners  of  the  tow  were  not  entitled  to  general  average  contribution  be- 
cause it  was  not  a  part  of  the  ship  or  cargo. 

7  Probably  the  earliest  recorded  case  is  that  mentioned  in  Jonah  i,  where 
cargo  was  jettisoned  to  lighten  a  ship  in  peril  on  a  voyage  from  Joppa  to 
Tarshish.  The  elements  of  general  average  were  present,  though  it  does 
not  appear  that  an  adustment  was  made. 


SALVAGE  AND  GENERAL  AVERAGE     191 

raise  money  to  continue  the  voyage;  a  mast  may  be  cut  away  to 
lighten  the  ship  or  the  engines  injured  by  overwork  to  escape  dis- 
aster or  expenses  incurred  by  deviating  to  a  port  of  refuge  for 
repairs ;  cargo  may  be  warehoused  or  transshipped ;  salvage  ex- 
penses may  be  incurred  in  saving  the  venture  from  a  stranding  or 
sinking  after  a  collision;  and  all  the  various  and  multiform  forms 
of  loss  sustained  and  expenses  incurred  for  common  safety,  within 
the  definition,  are  made  good  by  the  contribution  of  all. 

Ordinarily  a  jettison  of  cargo  carried  on  deck  does  not  give 
rise  to  general  average,  although  deck  cargo  is  not  exempt  from 
contributing  its  share  of  the  average  for  other  cargo  jettisoned 
for  its  safety.  But  deck  cargo  will  be  entitled  to  participate  in 
general  average  where  the  goods  are  of  such  character  as  it  is 
customary  in  the  trade  to  carry  on  deck;  also  where  the  other 
cargo-owners  have  expressly  consented  that  it  be  carried  on 
deck;  also  usually  in  coasting  and  river  voyages.  The  cases  ex- 
cluding deck  cargo  from  average  have  generally  arisen  out  of  sail- 
ing vessels  and  it  may  be  that  the  rule  should  be  confined  to  sail- 
ing vessels. 

14.  The  Adjustment.— This  ascertains  the  amount  of  the 
claim  and  the  respective  shares  of  contribution.  It  is  the  duty 
of  the  master  and  shipowner  to  see  that  timely  steps  are  taken 
for  this  purpose. 

After  a  voluntary  sacrifice  of  part  of  the  adventure,  and  a  conse- 
quent escape  of  the  rest  from  imminent  peril,  the  owner  of  the  ship, 
or  in  his  absence,  the  master  as  his  agent,  has  the  duty  of  having  an 
adjustment  made  of  the  general  average,  and  has  a  maritime  lien  on 
the  interests  saved,  and  remaining  in  his  possession,  for  the  amount 
due  in  contribution  to  the  owner  of  the  ship ;  and  the  owner  of  goods 
sacrificed  has  a  corresponding  lien  on  what  is  saved,  for  the  amount 
due  him  (Ralli  v.  Troop,  157  U.  S.  386). 

The  work  is  usually  done  by  an  adjuster  and  often  requires  a 
high  degree  of  professional  sk-ill.  He  determines  what  losses  are 
to  be  adjusted,  what  goods  contribute,  how  the  values  of  the 
receiving  and  contributory  interest  are  estimated,  and  when  and 
where  the  adjustment  should  be  made.  He  must  necessarily 
bring  to  this  work  a  special  acquaintance  with  maritime  law  and 
the  current  decisions  of  the  courts  on  the  subject  as  well  as  a 
practical  acquaintance  with  the  values  involved  and  the  methods  of 
business  which  they  represent.     He  is,  however,  merely  an  expert 


192  THE  LAW  OF  THE  SEA 

without  any  judicial  authority  and  his  work  is  subject  to  review 
by  the  parties  in  interest.  In  practice,  the  shipowner  places  in 
his  hands  the  documents  from  which  the  necessary  facts  can  be 
ascertained;  the  protest  of  the  master  and  mariners  showing  the 
circumstances  under  which  the  sacrifice  was  made  and  the  mani- 
fest of  the  cargo  to  show  the  goods  involved  will  be  essential ;  in 
addition  there  may  be  the  report  of  surveyors  as  to  the  condition 
and  value  of  the  ship  and  other  property  involved  and  such  other 
evidence  as  the  adjuster  requires  to  have  before  him,  the  valuations 
of  hull,  cargo,  freight  and  all  other  items  involved  in  the  contri- 
bution, excepting  the  wages  of  the  master  and  crew,  their  personal 
effects  and  the  apparel,  jewelry  and  baggage  of  the  passengers. 


CHAPTER  XIV 
CRIMES  COMMITTED  AT  SEA 

I.  Definition. — A  crime  consists  in  the  violation  of  a  public  law 
either  forbidding  or  commanding  an  act  to  be  done.  One  act  may 
constitute  several  crimes  against  different  jurisdictions,  as  against 
a  State  and  the  United  States  and  a  foreign  country.  Crimes  are 
classified  as  treason,  felonies  and  misdemeanors.  Treason  against 
the  United  States  consists  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  comfort.  Felonies 
are  crimes  punishable  by  death  or  imprisonment  in  a  state  prison ; 
all  other  crimes  are  misdemeanors. 

Crimes  committed  at  sea  are  those  accomplished  upon  the  high 
seas  or  within  the  jurisdiction  of  the  admiralty,  which  extends 
over  all  navigable  waters.  Such  crimes  are  punishable  by  the 
United  States  so  far  as  Congress  legislates  on  the  subject  and 
otherwise  by  the  particular  sovereignty  within  whose  jurisdiction 
the  offense  is  committed. 

2.  Admiralty  Criminal  Jurisdiction. —  The  constitutional 
grant  embraces  criminal  as  well  as  civil  cases  and  no  crime  can 
escape  punishment  because  committed  on  shipboard  or  on  the 
high  seas.  The  provisions  of  the  Constitution  in  regard  to  the 
trial  of  crimes  under  the  laws  of  the  United  States  require  the 
proceedings  to  be  according  to  the  practice  of  the  common  law, 
so  that  they  are  before  a  jury  as  in  ordinary  cases  and  the  or- 
dinary rules  of  criminal  law  are  applied.  These  crimes  are  cov- 
ered by  the  Criminal  Code  (lo  U.  S.  Comp  St.  1916,  10419- 
10444;  10445-10462;  10463-10483).  There  may  also  be  other 
crimes  according  to  the  law  of  the  place  where  the  vessel  may  be 
or  according  to  the  laws  of  the  State  or  country  from  which  she 
hails.  Merchant  vessels  are  regarded  for  many  purposes  as  float- 
ing portions  of  the  country  to  which  they  belong  and  of  the  par- 
ticular State  of  their  home  port.  An  American  merchant  vessel 
on  the  high  seas  will  therefore  continue  under  the  appropriate 
laws  both  of  the  United  States  and  of  her  own  particular  State, 

193 


194  THE  LAW  OF  THE  SEA 

and  while  in  foreign  ports  she  will  also  be  subject  to  local  law. 
She  will  never  be  outside  the  scope  of  some  law  and  although 
several  jurisdictions  may  overlap,  crimes  committed  on  board  will 
not  escape  punishment. 

3.  Place  of  Trial. — Whenever  an  offense  is  committed  on  board 
of  an  American  vessel,  it  is  the  duty  of  the  master  and  crew  to 
detain  the  offender  and  surrender  him  to  the  proper  authorities 
for  trial  as  soon  as  may  be.  H  the  offense  is  within  the  limits  of  a 
particular  State,  the  trial  must  be  in  a  Federal  court  therein;  if 
committed  on  the  high  seas,  then  in  a  like  court  of  the  district 
wherein  the  offender  is  apprehended  or  into  which  he  is  first 
brought;  if  within  a  port  of  a  foreign  country,  the  local  laws  may 
prevail.  The  jurisdiction  of  every  independent  nation  over  the 
merchant  vessels  of  other  nations  within  its  boundaries  is  abso- 
lute and  exclusive  and  arrests  may  be  made  thereon  and  offenders 
removed  for  trial  according  to  t'lie  laws  of  the  locality.  The  right 
of  local  authorities  to  search  a  vessel  in  their  ports  for  a  person 
charged  with  crime  is  established  unless  modified  by  treaty.  The 
master  is  bound  to  submit  to  the  jurisdiction  within  which  his 
vessel  lies.  In  practice  a  distinction  is  made  between  offenses 
affecting  the  peace  and  dignity  of  the  foreign  country  and  those 
only  involving  the  internal  order  and  discipline  of  tlie  ship.  A 
certain  comity  preserves  the  latter  from  outside  interference  and 
local  authorities  will  usually  decline  to  act  in  such  cases  or  inter- 
fere with  the  general  authority  of  the  master.  It  is  frequently 
provided  by  treaty  that  disputes  between  the  masters,  officers  and 
crews  may  be  adjudicated  by  their  consuls,  provided  that  they  do 
not  disturb  the  peace  or  tranquillity  of  the  port. 

4.  Offenses  Not  Consummated  on  Shipboard. —  Where  the 
crime  is  committed  on  the  high  seas  although  not  on  shipboard,  the 
admiralty  jurisdiction  as  administered  by  the  Federal  courts  will 
still  be  enforced.  The  case  of  Holmes,  i  Wall.  Jr.  i ;  26  Fed. 
Cas.  No.  15,383,  is  an  unusual  example.  The  American  ship, 
William  Brown,  loaded  with  passengers  and  cargo,  struck  an  ice- 
berg in  the  North  Atlantic  and  had  to  be  abandoned.  Nine  of  the 
crew  and  thirty-two  passengers  got  into  the  long-boat;  Holmes 
was  one  of  the  crew  and  took  charge  of  her  in  an  attempt  to  reach 
Newfoundland,  then  about  three  hundred  miles  away.  The  long- 
boat proved  leaky  and  was  so  seriously  overloaded  by  those  on 
board  as  to  fill  with  water  in  the  sea  which  began  to  rise.     In  the 


CRIMES  COMMITTED  AT  SEA  195 

face  of  urgent  necessity  and  under  Holmes'  general  directions, 
sufficient  of  the  passengers  were  thrown  overboard  to  enable  the 
boat  to  float  until  picked  up  by  a  passing  ship.  Holmes  was  con- 
victed of  manslaughter  in  the  Eastern  District  of  Pennsylvania. 

5.  Penalties  and  Forfeitures. — The  ship  herself  may  be  a 
quasi-criminal  under  maritime  law.  All  commercial  nations  find  it 
necessary  for  the  enforcement  of  their  laws  and  regulations  in 
regard  to  commerce  by  sea,  to  impose  penalities  upon  the  vessel 
by  or  through  which  violations  occur.  So  a  vessel  which  has 
engaged  in  any  piratical  aggression  may  be  condemned  and  sold 
for  the  use  of  the  United  States.  Violation  of  a  blockade  or 
carriage  of  contraband  of  war  renders  the  ship  liable  to  seizure 
and  sale  by  the  Government.  A  ship  licensed  for  the  coasting 
trade  may  be  forfeited  if  she  engages  in  any  other,  and  many 
penalties  may  be  inflicted  upon  the  vessel  for  acts  of  which  the 
owner  is  entirely  innocent.  Similarly  a  false  oath  made  in  order 
to  obtain  the  registry  of  a  vessel,  or  any  other  fraud  for  the 
purpose  of  obtaining  registry,  enrollment  or  licenses  will  result  in 
her  forfeiture,  and  so  will  a  sale  to  an  alien  without  complying 
with  the  provisions  of  the  statutes  (Chapter  11,  §  10,  supra). 
Forfeiture  of  a  vessel  will  also  result  from  an  attempt  to  change 
her  name,  otherwise  than  by  the  method  provided  by  law  (Chap- 
ter II,  §  9,  supra),  or  to  deceive  the  public  as  to  her  true  name  and 
character  by  any  contrivance,  device  or  advertisement  of  law 
where  the  owner  or  the  master  is  privy  to  the  offense,  as  for  exam- 
ple the  importation  of  diseased  cattle.  The  doctrine  of  the  per- 
sonality of  the  ship  again  appears  in  the  criminal  law  of  the 
admiralty  which  treats  her  like  an  individual  for  purposes  of  regu- 
lation and  punishment.  The  principle  was  laid  down  by  Justice 
Story  in  the  brig  Malek  Adhel,  2  How.  (U.  S.)  210: 

It  is  not  an  uncommon  course  in  the  admiralty,  acting  under  the 
law  of  nations,  to  treat  the  vessel  in  which  or  by  which,  or  by  the 
master  or  crew  thereof,  a  wrong  or  offense  has  been  done  as  the 
offender,  without  any  regard  whatsoever  to  the  personal  misconduct 
or  responsibility  of  the  owner  thereof. 

...••••♦"•" 

The  acts  of  the  master  and  crew,  in  cases  of  this  sort,  bind  the 
interest  of  the  owner  of  the  ship,  whether  he  be  innocent  or  guilty; 
and  he  impliedly  submits  to  whatever  the  law  denounces  as  a  for- 
feiture attached  to  the  ship  by  reason  of  their  unlawful  or  wanton 
wrongs. 


196  THE  LAW  OF  THE  SEA 

Thus  if  a  vessel  fails  to  carry  the  wireless  equipment  prescribed 
by  law  a  fine  is  imposed  upon  the  master  and  is  a  lien  upon  the 
ship  enforceable  by  law  in  admiralty.  The  statute  governing  the 
equipment  of  vessels  with  radio  telegraph  apparatus  is  given  under 
§  II  infra.  Innocent  cargo  is  not  involved  in  the  forfeiture  of  a 
guilty  vessel,  and  where  the  owner  and  master  of  a  vessel  is  inno- 
cent she  will  not  usually  be  forfeitable  by  reason  of  the  guilt  of 
the  cargo. 

The  sending,  or  attempting  to  send  to  sea,  of  a  vessel  so  unsea- 
worthy  as  to  be  likely  to  endanger  life,  is  a  misdemeanor  for  which 
the  person  guilty  is  to  be  punished  by  fine  or  imprisonment,  or 
both  (Act  of  December  21,  1898,  §  11),  unless  he  is  able  to 
prove  either  that  he  used  all  reasonable  means  to  insure  her  being 
sent  to  sea  in  a  seaworthy  state,  or  that  her  going  to  sea  in  an  un- 
seaworthy  state  was  under  circumstances  reasonable  and  justi- 
fiable. 

6.  Federal  Criminal  Code. — This  was  promulgated  by  the  Act 
of  March  4,  1909,  and  will  be  found  in  10  Comp.  St.  1916,  com- 
mencing at  page  12491.  Maritime  offenses  are  grouped  in  Chap- 
ter II,  "Offenses  within  the  admiralty  and  maritime  and  the 
territorial  jurisdiction  of  the  United  States,"  and  Chapter  12, 
"  Piracy  and  other  offenses  upon  the  Seas."  Unlike  the  legisla- 
tures of  the  several  States,  which  have  an  inherent  power  to  define 
and  punish  any  act  as  a  crime,  subject  to  constitutional  limitations, 
Congress  is  confined  to  the  powers  enumerated  in  the  Federal 
Constitution.  In  regard  fo  offenses  at  sea,  its  power  is  derived 
from  §  8  of  Article  i,  "  To  define  and  punish  Piracies  and  Felonies 
committed  on  the  high  seas,  and  Offenses  against  the  Law  of 
Nations,"  and  from  Article  III  which  provides  that  the  judicial 
power  shall  be  versed  '*  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish"  and  shall  extend 
"to  all  cases  of  admiralty  and  maritime  jurisdiction."  Chapter 
II  provides  for  the  punishment  of  murder,  manslaughter,  felo- 
nious and  simple  assaults,  attempts  to  commit  murder  or  man- 
slaughter, rape,  seduction,  loss  of  life  by  misconduct  of  officers  of 
vessels,  maiming,  robbery,  maritime  arson,  larceny  and  receiving 
stolen  goods,  when  committed  upon  the  high  seas,  or  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  out  of  the  jurisdiction  of  any  particular  State, 
or  within  such  admiralty  jurisdiction  on  board  of  any  vessel  be- 


CRIMES  COMMITTED  AT  SEA  197 

longing  in  whole  or  in  part  to  the  United  States,  or  any  citizen 
thereof,  or  corporation  created  under  its  laws  or  those  of  any  of 
its  States,  Territories  or  Districts ;  also,  when  committed  upon 
any  American  vessel  on  a  voyage  on  the  Great  Lakes,  or  upon  any 
island,  rock  or  key,  containing  deposits  of  guano  and  appertain- 
ing to  the  United  States. 

Chapter  12  provides  for  the  punishment  of  piracy;  maltreatment 
of  crews;  incitement  of  revolt  or  mutiny;  seamen  laying  violent 
hands  on  commanders ;  abandonment  of  mariners  in  foreign  ports ; 
conspiracy  to  cast  away  vessels ;  plundering  vessels  in  distress ; 
holding  false  lights;  attacking  vessels  with  intent  to  plunder; 
breaking  and  entering  vessels ;  destruction  of  vessels  at  sea ;  rob- 
bery on  shore  by  pirates;  arming  vessel  to  cruise  against  citizens; 
piracy  under  color  of  foreign  commission ;  piracy  by  aliens ;  vol- 
untary surrender  to  pirates ;  plotting  or  corresponding  with  pirates 
and  selling  arms  or  intoxicants  to  any  aborigines  in  Pacific  Islands. 
The  punishments  provided  for  the  oiTenses  in  these  two  chapters 
are  generally  severe  but  in  harmony  with  what  experience  has 
shown  to  be  appropriate  for  the  crimes  dealt  with. 

Besides  these  provisions,  the  Code,  in  Chapter  10,  deals  with 
the  slave  trade  and  peonage;  in  Chapter  2,  with  ofifenses  against 
neutrality ;  and  in  Chapter  9,  with  offenses  against  foreign  and 
interstate  commerce,  such  as  carrying  explosives  on  passenger 
vessels. 

Title  LIII  Merchant  Seaman  (7  Comp  St.  §§  8380-8391)  con- 
tains various  provisions  in  respect  of  offenses  and  punishments 
of  seamen ;  desertion ;  willful  disobedience ;  assaults  on  officers ; 
damaging  the  vessel ;  embezzlement  of  stores  or  cargo  ;  smuggling ; 
drunkenness,  carrying  sheath-knives  ;  unlawful  boarding;  soliciting 
seamen  as  lodgers;  and  corporal  punishment  are  there  dealt 
with. 

7.  Concurrent  Jurisdictions. —  There  is  no  doubt  that  Con- 
gress has  the  power  to  make  all  crimes  committed  within  the 
admiralty  jurisdiction  punishable  in  the  federal  courts  but  it  has 
not  done  so  and  is  not  likely  ever  to  so  enact.  Neither  is  it  likely 
ever  to  assert  an  exclusive  jurisdiction  over  all  or  any  such 
crimes  except  as  may  be  in  violation  of  a  purely  federal  enact- 
ment. Where  this  exclusive  jurisdiction  has  not  been  asserted, 
either  in  terms  or  by  necessary  implication,  state  laws  are  not  su- 
perseded by  federal,  and  the  same  act  may  be  punished  as  an 


198  THE  LAW  OF  THE  SEA 

offense  against  the  United  States  and  also  as  an  offense  against 
the  State;  it  may  tlius  be  within  the  jurisdiction  of  both  federal 
and  state  courts  or  the  one  may  have  jurisdiction  of  it  under  one 
aspect  and  the  other  under  a  different  phase.  The  rule  of  comity 
is  the  same  as  in  civil  cases ;  where  there  is  concurrent  jurisdiction, 
the  court  which  first  obtains  it,  will  continue  to  act  to  the  exclu- 
sion of  the  other.  Where  the  defendant  obtains  an  acquittal  in 
one  court  of  concurrent  jurisdiction,  the  judgment  is  a  bar  to  a 
subsequent  trial  in  the  other,  since  he  is  not  subject,  for  the  same 
offense,  to  be  twice  put  in  jeopardy  of  life  or  limb. 

8.  Limitations  of  Prosecutions. —  The  right  of  the  govern- 
ment to  prosecute  for  a  crime  is  not  barred  by  any  lapse  of  time 
unless  its  statutes  so  expressly  provide.  In  the  federal  courts, 
there  must  be  an  indictment  within  three  years  after  the  offense 
was  committed,  in  most  instances ;  for  the  slave  trade,  the  term 
is  five  years ;  but  these  tlerms  do  not  run  while  the  offender  is  a 
fugitive  from  justice. 

9.  Piracy. —  While  the  majority  of  offenses  under  maritime  law 
only  differ  from  like  offenses  on  land  in  respect  of  locality,  piracy 
is  confined  to  the  water.  Pirates  are  enemies  of  all  mankind  and 
the  offense  is  against  the  universal  laws  of  society.  There  is  a 
piracy,  therefore,  by  the  law  of  nations  and  those  guilty  of  it  are 
subject  to  pursuit,  seizure  and  punishment  by  the  vessels  of  every 
nation.  There  is  also  a  statutory  piracy  which  is  punishable  only 
within  the  limits  of  the  jurisdiction  Which  defines  it.  The  pirate 
by  the  law  of  nations  is  an  outlaw  whom  any  nation  may  capture 
and  punish.  He  is  one  who,  without  legal  authority  from  any 
state,  attacks  a  ship  with  the  intention  to  appropriate  what  belongs 
to  it;  in  other  words,  his  offense  is  that  of  depredation  on  the 
high  seas  without  authority  from  any  sovereign  state.  All  pri- 
vate, unauthorized  maritime  warfare  is  piratical  because  it  is  in- 
compatible with  the  peace  and  order  of  the  high  seas.  It  is  not 
necessary  that  the  motive  be  plunder  or  that  the  depredations  be 
directed  against  the  vessels  of  all  nations  indiscriminately;  it  is 
only  essential  that  the  spoliation,  or  intended  spoliation  be  felo- 
nious, that  is,  done  willfully  and  without  legal  authority  or  lawful 
excuse.  In  cases  of  this  piracy  by  international  law,  it  is  of  no 
importance,  for  purposes  of  jurisdiction,  where  or  against  whom, 
the  offense  is  committed ;  such  pirates  may  be  tried  and  punished 
and  the  ship  captured  and  condemned  wherever  found.    Apart 


CRIMES  COMMITTED  AT  SEA  199 

from  international  law,  any  government  may  declare  offenses  on 
its  own  vessels  to  be  piracy  and  such  offenses  will  be  exclusively 
punishable  by  it  like  ot'her  crimes.  St.  Clair  v.  U.  S.,  154  U.  S. 
134,  may  be  examined  in  regard  to  an  instance  of  statutory  piracy; 
while  the  Ambrose  Light,  25  Fed.  408,  js  a  very  learned  and  au- 
thoritative opinion  on  the  modern  views  of  piracy  under  inter- 
national law. 

ID.  Barratry. —  This  expression  frequently  appears  in  maritime 
law  and  includes  any  act  done  by  the  master  or  crew,  with  crim- 
inal intent,  in  violation  of  their  duty  to  the  shipowner  and  with- 
out his  connivance.  It  is  a  general  term  applicable  to  many 
criminal  acts  and  therefore  not  properly  classifiable  as  a  crime 
by  itself.  The  most  flagrant  form  is  where  the  ship  is  burned, 
scuttled  or  stranded  by  the  master  or  crew.  In  Marine  Insurance 
it  includes  every  wrongful  act  willfully  committed  by  the  master 
or  crew  to  the  prejudice  of  the  owner,  or,  as  the  case  may  be,  the 
charterer. 

Inasmuch  as  barratry  must  be  directed  against  or  in  fraud  of 
the  owner,  it  cannot  be  committed  by  a  master  who  is  a  part 
owner  of  the  ship,  either  generally  or  for  the  voyage.  Thus  in 
the  old  case  of  Marcadier  v.  Ins.  Co.,  8  Cranch  39,  the  master 
abandoned  the  voyage  at  an  intermediate  port  for  his  own  emolu- 
ment and  advantage,  and,  as  a  result,  a  quantity  of  cargo  was 
spoiled.  It  was  contended  that  he  had  been  guilty  of  barratry. 
The  Court  found,  however,  that  he  was  the  owner  of  the  ship  and 
therefore  incapable  of  committing  the  offense.  In  Ins.  Co.  v. 
Coulter,  3  Peters  222,  it  was  held  that  gross  negligence  might  be 
evidence  of  barratry: 

And  when  it  is  considered  how  difficult  it  is  to  decide  where  gross 
negligence  ends  and  ordinary  negligence  begins,  and  to  distinguish 
between  pure  accident  and  accident  from  negligence,  we  cannot  but 
think  that  the  British  courts  have  adopted  the  safe  and  legal  rule  in 
deciding,  that  where  the  policy  covers  the  risk  of  barratry,  and  fire 
be  the  proximate  cause,  they  will  not  sustain  the  defense  that  negli- 
gence was  the  remote  cause. 

This  case  contains  a  quaint  quotation  from  the  doctrine  of 
Malynes  "  whose  book  unites  the  recommendations  of  antiquity, 
good  sense  and  practical  knowledge."     The  passage  follows : 

Barratrie  of  the  master  and  mariners  can  hardly  be  avoided,  but 
by  a  provident  care  to  know  them,  or  at  least  the  master  of  the  ship 


200  THE  LAW  OF  THE  SEA 

upon  which  the  assurance  is  made.  And  if  he  be  a  careful  man,  the 
danger  of  fire  above  mentioned  will  be  the  less  for  the  ship;  boys 
must  be  looked  unto  every  night  and  day.  And  in  this  case  let  us 
also  consider  the  assurers;  for  it  has  oftentimes  happened,  that  by  a 
candle  unadvisedly  used  by  the  boys,  or  otherwise,  before  the  ships 
were  unladen,  they  have  been  set  on  fire  and  burnt  to  the  very  keel, 
with  all  the  goods  in  them,  and  the  assurers  have  paid  the  sums  of 
money  by  them  assured.  Nevertheless,  herein  the  assurers  might 
have  been  wronged,  although  they  bear  the  adventure  until  the  goods 
be  landed;  for  it  cometh  to  pass  sometimes,  that  whole  ships'  ladings 
are  sold  on  shipboard,  and  never  discharged. 

11.  Failure   to   Equip  with   Radio   Telegraph. —  By  Act  of 

Congress  approved  June  24,  1910,  36  St.  at  L.  629,  it  is  provided 
that  it  shall  be  unlawful  for  any  ocean-going  steamer,  whether 
American  or  foreign,  carrying  passengers  and  carrying  fifty  or 
more  persons,  including  passengers  and  crew,  to  leave  any  port 
of  the  United  States  unless  equipped  with  efficient  apparatus  for 
radio  communication  in  good  working  order,  capable  of  commun- 
icating over  a  distance  of  at  least  one  hundred  miles,  night  or  day, 
and  in  charge  of  a  competent  operator.  To  be  efficient  the  appa- 
ratus must  be  capable  of  exchanging  messages  with  stations  using 
other  systems  of  radio  communication.  A  fine  of  not  more  than 
$5,000  is  assessed  against  the  master  or  other  person  in  charge  for 
violation  of  the  act  and  as  has  been  said  (§5  supra)  the  fine  is  a 
lien  upon  the  ship.  Regulations  for  the  enforcement  of  the  act 
are  made  by  the  Secretary  of  Commerce.  The  act  does  not  apply 
to  steamers  plying  between  ports  less  than  200  miles  apart. 

12.  Failure  to  Disclose  Liens. —  By  the  Ship  Mortgage  Act, 
1920  (see  Appendix,  Merchant  Marine  Act,  Sec.  30),  a  mortgagor 
of  a  preferred  mortgage  is  required,  upon  request  of  the  mort- 
gagee, to  disclose  the  existence  of  any  maritime  lien,  prior  mort- 
gage or  other  liability  upon  the  vessel,  known  to  the  mortgagor, 
and  to  refrain,  until  the  mortgagee  has  had  an  opportunity  to 
record  the  mortgage,  from  incurring  liens  upon  the  vessel  except 
for  wages,  general  average  and  salvage.  Disobedience  to  this 
injunction  with  intent  to  defraud  is  made  a  misdemeanor  pun- 
ishable by  a  fine  of  not  more  than  $1,000  and  imprisonment  of  not 
more  than  two  years,  or  both,  and  the  mortgage  debt  is  to  become 
due  immediately. 

13.  Mutiny, —  This  term  is  most  often  used  with  reference  to  an 
offense  committed  on  shipboard,  although  technically  it  is  not 


CRIMES  COMMITTED  AT  SEA  201 

peculiar  to  shipping,  but  may  be  committed  by  soldiers  and  ser- 
vants. Mutiny  on  shipboard  is  defined  as  follows :  "  A  revolt  or 
mutiny  consists  in  attempts  to  usurp  the  command  from  the  mas- 
ter or  to  deprive  him  of  it  for  any  purpose  by  violence  or  in 
resisting  him  in  the  free  and  lawful  exercise  of  his  authority;  the 
overthrowing  of  the  legal  authority  of  the  master,  with  an  intent 
to  remove  him  against  his  will  and  the  like."  Mere  refusal  of 
duty  or  disobedience  by  a  seaman  while  liable  to  punishment  by 
the  master  is  not  mutiny,  and  the  conduct  may  be  very  aggravating 
and  contumacious  without  amounting  to  mutiny.  The  Stach 
Clark,  g4  Fed,  533. 


CHAPTER  XV 
WRECKS  AND  DERELICTS 

1.  Definitions. —  In  a  legal  sense,  the  word  wreck  includes  ships 
and  cargoes,  or  any  parts  thereof,  which  have  been  cast  on  shore 
by  the  sea,  and  derelict  applies  to  similar  property  abandoned  on 
the  sea.  The  terms  should  be  understood  as  limited  to  things  of  a 
maritime  nature  and  as  including  the  old  subdivisions  of  flotsam, 
jetsam  and  ligan, —  flotsam  being  the  name  for  the  goods  which 
float  when  the  ship  is  sunk,  jetsam  meaning  those  which  are  jet- 
tisoned or  thrown  overboard,  and  ligan  those  cast  into  the  sea  but 
tied  to  a  buoy  or  marker  so  that  they  might  be  found  again. 
Derelict  is  the  term  applied  to  a  thing  which  is  abandoned  at  sea 
by  those  who  were  in  charge  of  it,  without  any  hope  of  recovery 
or  intention  of  return. 

2.  Wrecks  under  the  Common  Lawi —  It  is  said  in  Murphy  v. 
Dunham,  38  Fed.  503,  that  the  disposition  of  wrecks  and  derelicts 
is  usually  a  fair  index  of  the  degree  of  civilization  of  the  people 
within  whose  domains  such  property  is  found.  In  primitive 
societies,  wrecks  are  treated  as  the  plunder  of  the  finder,  or  lord 
of  the  soil,  since  title  depends  on  possession  and  the  owner's  rights 
disappear  when  his  goods  are  separated  from  him.  The  common 
law  of  England  long  exhibited  this  imperfect  notion  of  property. 
Blackstone,  writing  about  1760,  points  out  that  by  the  ancient  com- 
mon law,  wrecked  goods  belonged  to  the  King  since  by  the  loss 
of  the  ship  all  property  left  the  original  owner.  This  harsh  rule 
was  modified  by  statutes  which  declared,  in  substance,  that  if  a 
man,  dog,  or  a  cat  escaped  alive  out  of  the  disaster,  it  was  no 
wreck  but  might  be  reclaimed  by  the  owner  within  a  year  and  a 
day.  In  this  country,  colonial  laws  and  current  statutes  have 
alike  repudiated  these  primitive  notions,  and  reenacting  appro- 
priate provisions  of  Roman  and  medieval  sea-law,  provide  for 
safely  keeping  the  property  for  the  space  of  a  year,  or  other  rea- 
sonable time,  for  the  owner,  and  delivering  it  to  him  on  the  pay- 
ment of  reasonable  salvage ;  only  in  the  event  of  the  total  failure 

202 


WRECKS  AND  DERELICTS  203 

of  the  owner  to  appear,  do  the  goods  or  their  proceeds  pass  to  the 
state.  The  Act  of  Congress  (10  U.  S.  Comp.  St.  1916,  §  10470) 
provides  that  whoever  pkinders,  steals,  or  destroys  any  money, 
goods,  merchandise,  or  other  effects,  from  or  belonging  to  any 
vessel  in  distress,  or  wrecked,  lost,  stranded,  or  cast  away,  upon 
the  sea,  or  upon  any  reef,  shoal,  bank,  or  rocks  of  the  sea,  or  in 
any  other  place  within  the  admiralty  and  maritime  jurisdiction  of 
the  United  States,  shall  be  fined  not  more  than  five  thousand  dol- 
lars and  imprisoned  not  more  than  ten  years ;  and  whoever  will- 
fully obstructs  the  escape  of  any  person  endeavoring  to  save  his 
life  from  such  vessel,  or  the  wreck  thereof ;  or  whoever  holds  out 
or  shows  any  false  light,  or  extinguishes  any  true  light,  with 
intent  to  bring  any  vessel  sailing  upon  the  sea  into  danger,  or  dis- 
tress, or  shipwreck,  shall  be  imprisoned  not  less  than  ten  years 
and  may  be  imprisoned  for  life. 

It  is  interesting  to  note,  in  connection  with  this  statute,  two 
Articles  of  the  Rooles  of  OUron, — 

Article  XXV 

If  a  ship  or  other  vessel  arriving  at  any  place,  and  making  in  to- 
wards a  port  or  harbour,  set  out  her  flag,  or  give  any  other  sign  to 
have  a  pilot  come  aboard,  or  a  boat  to  tow  her  into  the  harbour,  the 
wind  or  tide  being  contrary,  and  a  contract  be  made  for  piloting  the 
said  vessel  into  the  said  harbour  accordingly ;  but  by  reason  of  an 
unreasonable  and  accursed  custom,  in  some  places,  that  the  third  or 
fourth  part  of  the  ships  that  are  lost,  shall  accrue  to  the  lord  of  the 
place  where  such  sad  casualties  happen,  as  also  the  like  proportion  to 
the  salvors,  and  only  the  remainder  to  the  master,  merchant  and 
mariners :  the  persons  contracting  for  the  pilotage  of  the  said  vessel, 
to  ingratiate  themselves  with  their  lords,  and  to  gain  to  themselves  a 
part  of  the  ship  and  lading,  do  like  faithless  and  treacherous  villains, 
sometimes  even  willingly,  and  out  of  design  to  ruin  ship  and  goods, 
guide  and  bring  her  upon  the  rocks,  and  then  feigning  to  aid,  help 
and  assist,  the  now  distressed  mariners,  are  the  first  in  dismember- 
ing and  pulling  the  ship  to  pieces ;  purloining  and  carrying  away  the 
lading  thereof  contrary  to  all  reason  and  good  conscience:  and  after- 
wards that  they  may  be  the  more  welcome  to  their  lord,  do  with  all 
speed  post  to  his  house  with  the  sad  narrative  of  this  unhappy  dis- 
aster; whereupon  the  said  lord,  with  his  retinue  appearing  at  the 
places,  takes  his  share;  the  salvors  theirs;  and  what  remains  the 
merchant  and  mariners  may  have.  But  seeing  this  is  contrary  to  the 
law  of  God,  our  edict  and  determination  is,  that  notwithstanding  any 
law  or  custom  to  the  contrary,  it  is  said  and  ordained,  the  said  lord 
of  that  place,  salvors,  and  all  others  that  take  away  any  of  the  said 


204  THE  LAW  OF  THE  SEA 

goods,  shall  be  accursed  and  excommunicated,  and  punished  as  rob- 
bers and  thieves,  as  formerly  hath  been  declared.  But  all  false  and 
treacherous  pilots  shall  be  condemned  to  suffer  a  most  rigorous  and 
unmerciful  death;  and  high  gibbets  shall  be  erected  for  them  in  the 
same  place,  or  as  nigh  as  conveniently  may  be,  where  they  so  guided 
and  brought  any  ship  or  vessel  to  ruin  as  aforesaid,  and  thereon  these 
accursed  pilots  are  with  ignominy  and  much  shame  to  end  their  days ; 
which  said  gibbets  are  to  abide  and  remain  to  succeeding  ages  on  that 
place,  as  a  visible  caution  to  other  ships  that  shall  afterwards  sail 
thereby. 

Article  XXVI 

If  the  lord  of  any  place  be  so  barbarous,  as  not  only  to  permit  such 
inhuman  people,  but  also  to  maintain  and  assist  them  in  such  villarries, 
that  he  may  have  a  share  in  such  wrecks,  the  said  lord  shall  be  appre- 
hended, and  all  his  goods  confiscated  and  sold,  in  order  to  make  resti- 
tution to  such  as  of  right  it  appertaineth ;  and  himself  to  be  fastened 
to  a  post  or  stake  in  the  midst  of  his  own  mansion  house,  which  being 
fired  at  the  four  corners,  all  shall  be  burnt  together,  the  walls  thereof 
shall  be  demolished,  the  stones  pulled  down,  and  the  place  converted 
into  a  market  place  for  the  sale  only  of  hogs  and  swine  to  all  posterity. 

The  Act  of  Congress  and  the  ancient  articles  are  both  occasioned 
by  the  persistent  notion  of  loss  of  title  by  shipwreck  and  the  right 
of  people  on  shore  to  appropriate  what  they  can  of  the  property 
at  risk. 

3.  Wrecks  within  Admiralty  Jurisdiction. —  It  is  sometimes 
said  that  the  admiralty  has  no  jurisdiction  over  wrecks,  but  the 
statement  is  correct  in  only  a  limited  sense.  In  cases  where  the 
property  had  become  quite  removed  from  all  connection  with  com- 
merce or  navigation,  as  where  a  ship  had  been  thrown  far  inland 
by  a  tidal  wave  and  been  converted  into  a  dwelling,  or  cargo  was 
incorporated  into  the  common  mass  of  property  on  shore,  the 
admiralty  would  probably  decline  jurisdiction.  On  the  other 
hand,  the  admiralty  law  of  salvage  is  based,  in  large  part,  on  tlie 
law  of  wrecks  and  derelicts ;  contracts  for  the  lightering  of 
stranded  cargoes  or  the  release  of  wrecked  vessels  are  obviously 
maritime  and  the  conversion  of  shipwrecked  property  may  be  a 
maritime  tort  when  consummated  on  navigable  waters.  A 
steamer  which  had  been  wrecked  and  abandoned  to  the  under- 
writers as  a  total  loss,  and  incapable  of  self-propulsion  or  of  carry- 
ing a  cargo,  still  remained  within  the  admiralty  law  of  limited 
liability  (Craig  v.  Insurance  Company,  141  U.  S.  638).  The  fact 
is  that  the  two  jurisdictions  are  largely  concurrent  on  most  mat- 


WRECKS  AND  DERELICTS  205 

ters  in  regard  to  wrecks  and  the  instances,  in  which  an  adequate 
remedy  can  not  be  found  in  either,  are  rare. 

4.  Liabilities  of  Owner  of  Wreck. —  It  is  a  general  doctrine  of 
the  law  that  the  owner  of  a  vessel  wrecked  without  his  personal 
fault  may  relieve  himself  from  all  further  personal  liability  on  its 
account  by  abandoning  it.     If  sunk  through  his  fault,  or  if  he 
still  retains  his  title,  he  may  be  liable  for  damage  which  it  oc- 
casions, or  for  maintaining  a  nuisance,  or  for  obstructing  navi- 
gable waters.     If  wrecked  by  unavoidable  accident  or  without  the 
owner's  negligence,  he  may  abandon  all  his  rights  and  interest  in 
what  remains  and  be   freed  from  all   further  responsibility;  he 
will  be  under  no  obligation  to  remove  it  nor  subject  to  indictment 
on  its  account,  nor  liable  in  damages  for  injuries  caused  by  it. 
This   abandonment   is   not   required   to   be   in   any   formal   way 
but  is  shown  by  evidence  of  acts  and  intention.     A  notice  to 
any  public  authorities  who  may  be  concerned,  like  local  United 
States  engineers,  or  harbor  masters,  or  commissioners  of  wrecks, 
is  often  sufficient.     Where,  however,  the  owner  does  not  abandon, 
he  remains  liable  in  many  respects.     The  wreck  may  be  a  nui- 
sance which  the  courts  will  compel  him  to  abate  at  the  suit  of 
property  owners  injuriously  affected.     It  may  be  an  obstruction  to 
navigable  waters  and  the  government  may  remove  it  at  his  expense 
or  proceed  against  him  criminally  for  such  obstruction.     Passing 
vessels  may  injure  themselves  against  it  or  the  riparian  owner 
assert  damages  for  the  trespass, 

5.  Rights  of  Landowner. —  The  owner  of  the  shore  on  which 
a  wreck  is  cast  is  not  under  any  legal  obligation  to  save  it  for 
the  owner  but  he  may  take  possession  and  protect  it  on  the  own- 
er's account.  If  he  does  so,  he  will  have  a  lien  on  the  property  for 
his  expense  and  labor,  at  least,  and  may  stand  in  the  position  of 
a  salvor.  If  he  does  nothing  himself,  he  may  not  resist  the 
reasonable  efforts  of  others  to  save  the  property  for  it  is  a  very 
old  rule  of  the  common  law,  that  an  entry  upon  land  to  save 
goods  which  are  in  jeopardy  of  being  lost  or  destroyed  by  water, 
fire  or  any  like  danger,  is  not  a  trespass,  and  this  rule  is  applied  to 
the  rescue  of  ships  cast  ashore  by  the  sea.  At  the  same  time, 
the  owner  of  the  shore  will  have  a  sufficient  title  to  goods  cast 
thereon  to  maintain  an  action  for  their  value  against  third  par- 
ties and  salvors  should  be  prompt  in  seeking  the  protection  of  the 
admiralty  if  their  efforts  are  successful. 


2o6  THE  LAW  OF  THE  SEA 

6.  Owner's  Rights. —  The  owner's  title  to  his  wrecked  ship  or 
cargo  remains  in  him  until  divested  by  his  own  act  or  by  opera- 
tion of  law  and  he  has  the  right  to  enter  upon  lands  of  another, 
upon  which  it  may  be  cast,  for  the  purpose  of  removing  it ;  if 
prevented  from  so  doing  he  may  have  his  action  of  trover  for  its 
conversion  or  a  replevin  for  possession.^  In  case  his  property 
was  insured  and  abandoned  to  his  underwriters,  they  become  the 
full  owners  thereof  and  entitled  to  all  his  rights  on  the  premises. 
These  rules  apply  alike  to  ship  and  to  cargo  and  to  all  the  parts 
thereof.  In  Murphy  v.  Dunham,  38  Fed.  503,  may  be  found  an 
interesting  discussion  in  regard  to  a  wrecked  cargo  of  coal.  Dun- 
ham owned  the  schooner  Burt  which  was  lost  in  Lake  Michigan 
with  about  1,375  tons  of  coal  on  board.  Murphy  bought  this 
cargo  from  the  underwriters  who  had  paid  a  total  loss  thereon. 
About  two  years  afterwards,  Dunham  located  the  wreck  and 
raised  a  quantity  of  the  coal  which  he  sold  for  the  best  price  ob- 
tainable. These  proceedings  were  without  any  license  or  author- 
ity from  Murphy,  who  had  purchased  the  cargo,  and  he  then  sued 
Dunham  for  tortious  conversion.  The  court  held  that  Murphy 
had  a  valid  title  and  that  Dunham  was  a  trespasser  in  interfering 
with  it ;  nevertheless  if  Dunham  had  promptly  libeled  it  for  sal- 
vage, his  conduct  not  being  marred  by  bad  faith,  the  admiralty 
would  have  awarded  him  a  substiantial  reward ;  but  as  he  had 
assumed  to  dispose  of  it  at  private  sale,  he  must  answer  in  dam- 
ages, although  not  as  a  willful  trespasser  or  one  acting  in  bad 
faith;  he  was  accordingly  held  to  respond  for  the  value  of  the 
coal  in  the  port  where  he  sold  it,  less  the  actual  and  necessary  ex- 
penses of  its  recovery.  The  Albany,  44  Fed.  431,  is  another 
opinion  in  regard  to  the  rights  of  the  owners  of  ship  and  cargo; 
as  a  result  of  that  disaster,  the  cargo  was  plundered  by  wreckers 
and  sold  to  many  persons  in  the  vicinity ;  the  underwriters  recov- 
ered it  by  actions  in  replevin  wherever  it  could  be  found. 

7.  Rights  of  Government.— The  Act  of  March  3,  1899,  (10 
U.  S.  Comp.  St.  §  9920,  etc.)  contains  provisions  for  the  removal 
of  wrecks  in  navigable  waters  by  the  Government.  The  obstruc- 
tion may  be  broken  up,  removed,  sold  or  otherwise  disposed  of  by 
the  Secretary  of  War  at  his  discretion,  without  liability  for  any 
damage  to  the  owners  of  the  same.     This  authority  may  be  del- 

1  These  are  common-law  forms  of  action  for  the  recovery  of  property  or 
damage  for  its  detention. 


WRECKS  AND  DERELICTS  207 

egated  by  the  Secretary  of  War  and  permits  tlie  prompt  removal 
of  wrecks  when  they  interfere  with  navigation.  The  rights  and 
power  of  the  Government  to  so  dispose  of  wreckage  can  hardly 
be  doubted  and  similar  power  probably  exists  in  all  foreign  juris- 
dictions as  well  as  in  the  several  states. 

8.  Derelicts. — Vessels  abandoned  and  deserted  at  sea,  with  or 
without  their  cargoes,  are  termed  derelicts  and  may  be  salved  or 
destroyed  by  whomsoever  can  do  so.  They  constitute  very  dan- 
gerous obstructions  to  navigation,  especially  when  afloat  on  the 
ocean  or  the  Great  Lakes.  The  question  whether  or  not  a  vessel 
is  to  be  adjudged  a  derelict  is  decided  by  ascertaining,  not  what 
was  actually  the  state  of  things  when  she  was  deserted  by  her 
master  and  crew,  but  what  were  their  intentions  and  expectations 
when  they  quitted  her.  If  they  left  in  order  to  obtain  assistance 
with  the  distinct  purpose  to  return,  there  is  no  derelict.  Prima 
facie,  however,  a  deserted  vessel  at  sea  is  a  derelict  and  subject  to 
salvage  services,  or,  if  not  salvable,  then  to  destruction  by  private 
parties  or  naval  authorities.  Salvage  of  derelicts  is  always  lib- 
erally rewarded,  sometimes  to  the  amount  of  the  whole  recovery. 
If  destroyed,  the  proceeding  must  be  in  entire  good  faith  and,  if 
so,  there  will  be  no  liability  to  the  owner.  In  the  case  of  the 
River  Mersey,  48  Fed.  686,  that  steamer  had  burned  a  scow  found 
adrift  at  sea  and  was  libeled  for  its  destruction.  It  appears  that 
the  scow  had  broken  adrift  near  one  of  the  West  Indies  and  be- 
come a  dangerous  factor  in  the  navigation  up  and  down  the  coast. 
The  steamer  took  her  in  tow  in  order  to  drop  her  inside  of  the 
Gulf  Stream  but,  finding  this  impossible  on  account  of  the  weather, 
set  her  on  fire  in  order  to  destroy  her  and  so  remove  a  dangerous 
obstruction  to  navigation.  The  owners  of  the  scow  alleged  that 
they  had  not  abandoned  her  and  meant  to  send  out  a  tug  to  bring 
her  into  port.  The  court  dismissed  the  libel,  saying  that  the 
destruction  of  such  obstacles  to  the  fairways  of  the  sea,  either 
when  abandoned,  or  when  proved  not  to  be  worth  saving,  is  not 
tortious  or  actionable,  but  rather  a  praiseworthy  and  beneficent 
service,  and,  whether  done  by  private  or  public  ships,  needs  no 
statutory  authority  but  is  entirely  justified  under  the  law  of  neces- 
sity, for  the  protection  of  life  and  property,  and  for  the  manifest 
public  good. 

9.  Finders. —  The  person  who  finds  property  lost  at  sea,  or 
cast  upon  the  shore,  is  protected  against  the  interference  of  third 


2o8  THE  LAW  OF  THE  SEA 

parties  although  he  has  no  title  against  the  real  owner  unless  that 
owner  had  abandoned  completely.  Eads  v.  Brazelton,  22  Ark. 
499,  is  an  excellent  opinion  on  this  phase  of  the  subject.  The 
steamboat  America,  laden  with  a  cargo  of  lead,  had  sunk  in  the 
Mississippi  River  in  1827,  In  1854  Brazelton  had  discovered  the 
wreck  over  which  an  island  had  formed  an<i  a  forest  grown,  and 
commenced  preparations  for  its  recovery.  He  marked  its  posi- 
tion and  placed  buoys  around  it  but  was  prevented  from  com- 
mencing operations  until  the  next  year.  In  the  meantime  Eads 
commenced  operations  on  his  own  account  and  Brazelton  sought 
an  injunction  to  restrain  him.  The  original  owners  did  not  appear 
or  make  any  claim.  Brazelton  was  held  to  have  a  good  title  as 
against  any  others  than  the  owner  on  the  ground  that  he  was  the 
first  finder  of  an  abandoned  wreck. 


CHAPTER  XVI 
WHARFAGE  AND  MOORAGE 

I.  Definition. —  Wharves  are  structures  made  to  facilitate  and 
aid  commerce  and  navigation  and  are  essential  to  maritime  af- 
fairs. They  are  classed  as  public  and  private  and  frequently 
regulated  by  local  laws  and  ordinances.  Wharfage  means  the  use 
by  the  vessel  of  a  wharf,  pier  or  other  landing  place  and  also  the 
compensation  for  such  use ;  moorage  is  a  practically  similar  term 
but  may  include  the  use  of  unimproved  property  by  the  ship  while 
anchored  or  otherwise  attached  to  the  shore  or  lying  in  a  slip. 
Private  wharves  are  those  which  the  owner  has  constructed  and 
reserved  for  his  own  use  but  when  they  are  legally  thrown  open 
to  the  use  of  the  public,  they  become  affected  with  a  public  inter- 
est ;  the  keeping  of  such  a  wharf  has  been  likened  to  inn-keeping 
or  other  quasi-public  places  and  all  seeking  its  use  are  entitled  to 
accommodation  at  reasonable  rates. 

2.  Right  to  Erect. —  The  construction  of  wharves  or  piers 
upon  navigable  waters  is  usually  governed  by  federal,  state  or 
municipal  regulations  and,  unless  appropriate  authority  is  ob- 
tained, the  erection  of  such  a  structure,  projecting  into  the  stream, 
will  be  unlawful  and  the  person  responsible  for  the  obstruction 
may  be  liable  for  any  damage  resulting  from  its  existence,  and 
may  be  criminally  liable  to  the  federal  government  and  subject 
to  injunctive  process  for  the  removal  of  the  structure.  This 
remark  does  not  apply  to  structures  confined  wholly  to  the  shores 
and  not  projecting.  The  paramount  authority  to  legislate  with 
regard  to  wharves  in  navigable  streams  resides  in  Congress, 
which  has  enacted  that  no  such  structures  shall  be  erected  outside 
of  established  harbor  lines,  or  where  no  harbor  lines  have  been 
established,  except  by  specific  authority  of  the  Secretary  of  War. 
The  Secretary  of  War  is  empowered  to  establish  harbor  lines 
where  he  considers  it  essential  (30  St.  at  L.  425).  It  has  been 
held,  however,  that  the  power  of  Congress  to  regulate  the  use  of 
navigable  waters  entirely  within  the  limits  of  a  State  is  not  com- 
plete without  the  concurrence  of  the  state  legislature.     In  most 

209 


210  THE  LAW  OF  THE  SEA 

communities  located  on  navigable  waters,  there  exists  a  corporate 
power,  conferred  by  the  legislature,  to  regulate  wharves,  piers 
and  landings,  and  in  pursuance  of  such  power  wharves  and  har- 
bor lines  are  frequently  established,  in  the  absence  of  federal 
action  establishing  the  same. 

3.  Duties  of  Proprietor. —  The  owner  of  a  wharf  is  bound  to 
keep  it  safe  and  free  from  all  defects  which  might  injure  persons 
or  property  using  the  same.  While  not  an  insurer  he  must  use 
due  diligence  to  make  and  keep  it  safe  for  the  uses  for  which  it 
was  constructed  or  is  employed.  The  analogy  is  that  of  the 
keeper  of  any  structure  commonly  used  by  others  for  compensa- 
tion and  the  obligation  extends  to  all  who  rightfully  come  upon  the 
premises  for  business  purposes.  Thus  friends  attending  upon 
the  arrival  or  embarkation  of  passengers,  consignees  of  cargo, 
hackmen,  and  customs  officers  have  recovered  damages  against 
the  owner  of  a  wharf  for  injuries  sustained  through  its  defective 
condition.  So  he  will  also  be  liable  for  injuries  to  vessels  caused 
by  rocks  or  other  obstacles  beneath  the  surface  of  the  water  or 
pikes  projecting  from  the  wharf.  There  is  an  implied  warranty 
that  the  premises  are  safe  and  free  from  hidden  obstructions. 
Frequent  inspections  are  required  in  order  to  ascertain  and  repair 
such  defects  as  may  be  engendered  by  its  use.  and  if  dangers  are 
found  to  exist,  he  should  close  the  wharf  or  give  ample  notice  of 
its  condition. 

These  principles  were  invoked  in  the  case  of  Onderdonk  v. 
Smith,  ct  al.,  27  Fed.  874 ;  where  a  scow  and  her  cargo  were  sunk 
in  consequence  of  being  punctured  by  a  spile  which  projected 
from  the  bottom  of  the  slip  directly  under  the  place  where  the 
scow  had  taken  her  cargo.  The  respondent  enjoyed  the  exclusive 
privilege  from  the  owners  of  using  the  pier  and  the  adjoining 
slip  for  shipping  their  coal  and  to  that  extent,  although  they  were 
neither  owners  or  lessees,  had  control  and  occupation  of  the 
premises.  "  They  assumed  the  duty  toward  those  whom  they 
invited  there  for  the  transaction  of  business  not  to  expose  them 
to  hazard  from  any  defects  in  the  condition  of  the  premises  known 
to  themselves  or  which,  by  the  use  of  reasonable  diligence,  should 
have  been  known."  Their  superintendent  knew  of  the  existence 
of  the  spile  and  they  were,  therefore,  chargeable  with  notice,  be- 
cause about  three  weeks  before  the  accident  in  suit  another  boat 
had  been  struck  by  the  same  spile.     The  Court  said : 


WHARFAGE  AND  MOORAGE        211 

If  the  scow  had  been  injured  by  this  obstruction  while  being  loaded 
at  the  pier,  or  while  going  to  it  or  away  from  it  in  the  prosecution 
of  the  business  which  called  her  there,  the  case  of  the  libellant  would 
be  clear.  But  the  evidence  is  that  her  loading  was  completed  at 
half  past  4  o'clock  in  the  afternoon,  when  the  water  was  a  little  below 
high  tide,  and  the  accident  happened  about  half  past  9  in  the  evening, 
when  the  tide  was  low  ebb;  and  if  the  scow  had  been  removed  from 
the  place  where  she  was  loaded  within  a  reasonable  time  after  the 
loading  was  completed,  she  would  not  have  been  injured.  When  the 
tide  went  out,  the  scow  settled  down  upon  the  spile,  which  projected 
about  a  foot  from  the  bottom  of  the  slip,  and  sufficiently  far  to  punc- 
ture the  boat  at  that  condition  of  the  water. 

The  only  liability  of  the  defendants  grows  out  of  their  duty  arising 
from  their  implied  invitation  to  others  to  use  the  pier  for  the  trans- 
action of  the  business  to  which  the  pier  was  appropriated.  Their 
invitation  was  spent  when  the  boat's  business  at  the  pier  was  finished, 
and  a  reasonable  time  had  elapsed  to  enable  her  to  move  away.  After 
that  she  remained  there  at  her  own  risk.  It  is  not  necessary  to  hold 
that  she  was  there  against  the  permission  of  the  defendants,  and 
therefore  a  willful  trespasser ;  but,  assuming  that  she  was  there  with- 
out having  obtained  the  permission  of  the  defendant's  superintendent, 
the  defendants  were  not  under  any  obligation  to  concern  themselves 
for  her  protection.  Under  such  circumstances,  the  law  imposed  no 
duty  upon  the  defendants  except  the  general  duty  which  every  man 
owes  to  others  to  do  them  no  intentional  wrong  or  injury. 

Owners  of  private  property  are  not  responsible  for  injuries  caused 
by  leaving  a  dangerous  place  unguarded,  when  the  person  injured  was 
not  on  the  premises  by  permission,  or  on  business,  or  other  lawful 
occasion,  and  had  no  right  to  be  there.  One  who  thus  uses  another's 
premises  cannot  complain  if  he  encounters  unexpected  perils. 

In  Smith  v.  Burnett,  173  U.  S.  430,  a  schooner  while  moored  in 
berth  at  a  wharf  on  the  Potomac  River  for  loading,  was  sunk  by 
a  submerged  rock  within  the  limits  of  the  berth  at  the  wharf, 
which  the  master  was  invited  to  take,  the  obstruction  being  un- 
known to  the  master  and  having  been  assured  by  the  owners  of 
the  wharf,  through  their  agent,  that  the  depth  of  water  in  the  berth 
in  front  of  the  wharf  was  sufficient  and  that  the  berth  was  safe 
for  the  loading  of  vessels.  Chief  Justice  Fuller,  discussing  the 
English  and  American  authorities  said: 

Although  a  wharfinger  does  not  guarantee  the  safety  of  vessels 
coming  to  his  wharves,  he  is  bound  to  exercise  reasonable  diligence 
in  ascertaining  the  condition  of  the  berths  thereat,  and  if  there  is  any 


212  THE  LAW  OF  THE  SEA 

dangerous  obstruction,  to  remove  it,  or  to  give  due  notice  of  its  exist- 
ence to  vessels  about  to  use  the  berths.  At  the  same  time  the  master 
is  bound  to  use  ordinary  care,  and  cannot  carelessly  run  into  danger. 

4.  Rights  of  Proprietor. —  The  ovi^ner  of  a  private  wharf  is 
entitled  to  compensation  for  its  use  by  others  or  to  reserve  it 
entirely  for  his  own  accommodation.  Riparian  owners  may  con- 
struct and  maintain,  for  their  own  exclusive  use  and  benefit, 
private  wharves  on  their  own  property,  and,  so  long  as  they  do  use 
them,  and  refrain  from  giving  them  a  public  character,  may  deal 
with  them  as  other  private  property.  If  a  vessel  is  wrongfully 
moored  to  such  a  private  wharf,  the  owner  may  cast  it  adrift  and 
will  not  incur  any  liability  if,  in  consequence  of  his  act,  the  vessel 
becomes  stranded  and  lost.  In  the  interesting  case  of  Dutton  v. 
Strong,  I  Black  23,  a  vessel  in  peril  running  into  a  harbor  in  the 
night  made  fast  to  a  pier,  which  was  the  private  property  of  the 
riparian  proprietor,  without  securing  his  permission.  The  force 
of  the  sea  causing  the  vessel  to  pound  and  parts  of  the  pier  be- 
ginning to  give  way,  the  proprietor  of  the  pier  warned  the  master 
to  leave.  The  master,  believing  that  such  a  course  would  imperil 
his  vessel,  did  not  do  so  and  the  pier  owner  cast  her  loose,  as  a 
result  of  which  she  was  so  seriously  injured  that  her  master  was 
obliged  to  scuttle  her.  The  owner  of  the  vessel  brought  action  for 
damages.     The  court  (CHfford,  J.)  said: 

Piers  or  landing  places  and  even  wharves,  may  be  private,  or  they 
may  be  in  their  nature  public,  although  the  property  may  be  in  an 
individual  owner;  or,  in  other  words,  the  owner  may  have  the  right 
to  the  exclusive  enjoyment  of  the  structure,  and  to  exclude  all  other 
persons  from  its  use ;  or  he  may  be  under  obligation  to  concede  to 
others  the  privilege  of  landing  their  goods,  or  of  mooring  their  ves- 
sels there,  upon  the  payment  of  a  reasonable  compensation  as 
wharfage ;  and  whether  they  are  the  one  or  the  other  may  depend,  in 
case  of  dispute,  upon  several  considerations,  involving  the  purpose  for 
which  they  were  built,  the  uses  to  which  they  have  been  applied,  the 
place  where  located,  and  the  nature  and  character  of  the  structure. 
Undoubtedly,  a  riparian  proprietor  may  construct  any  one  of  these 
improvements  for  his  own  exclusive  use  and  benefit,  and,  if  not  lo- 
cated in  a  harbor,  or  other  usual  resting  place  for  vessels,  and  if  con- 
fined with  the  shore  of  the  sea  or  the  unnavigable  waters  of  a  lake, 
and  it  had  not  been  used  by  others,  or  held  out  as  intended  for  such 
use,  no  implication  would  arise,  in  a  case  like  the  present  thus  the 
owner  had  consented  to  the  mooring  of  the  vessel  to  the  bridge  pier. 

Accordingly  it  was  held  that: 


WHARFAGE  AND  MOORAGE        213 

When  it  became  obvious  that  the  necessary  effect  of  the  trespass, 
if  suffered  to  be  continued,  would  be  to  endanger  and  injure  or  per- 
haps destroy  the  pier,  the  peril  of  the  vessel  imposed  no  obligation 
upon  the  defendants  to  allow  her  to  remain  and  take  the  hazard  that 
their  own  property  would  be  sacrificed  in  the  effort  to  save  the  prop- 
erty of  the  wrongdoers.  On  the  contrary,  they  had  a  clear  right  to 
interpose  and  disengage  the  vessel  from  the  pier  to  which  she  had 
been  wrongfully  attached,  as  the  only  means  in  their  power  to  relieve 
their  property  from  the  impending  danger.  They  had  never  con- 
sented to  incur  that  danger,  and  were  not  in  fault  on  account  of  the 
insufficiency  of  the  pier  to  hold  the  vessel,  because  it  had  not  been 
erected  or  designed  as  a  mooring  place  for  vessels  in  rough  weather, 
and  it  was  the  fault  of  the  plaintiffs  or  their  agent  that  the  vessel 
was  placed  in  that  situation. 

The  proprietor  of  a  private  wharf  may  fix  any  rate  he  pleases 
for  the  use  of  such  a  wharf  and  those  employing  it,  after  due 
notice  of  the  charge,  will  make  themselves  liable  to  pay  it.  This 
rule  of  private  property,  however,  applies  only  to  the  purely 
private  wharf  and  slight  circumstances  may  be  sufficient  to  give 
it  a  public  character.  It  has,  indeed,  been  held  that  where  the 
wharf  constitutes  the  only  means  by  which  the  people  of  a  com- 
munity can  reach  the  water  and  have  the  benefit  of  the  means  of 
commerce  and  navigation  thereon,  the  structure  is  necessarily  im- 
pressed with  a  public  interest  and  may  not  be  monopolized  to  the 
exclusion  of  others. 

5.  Wharfage  Compensation. —  The  compensation  for  the  use 
of  a  private  wharf  depends  on  the  bargain  of  the  parties  con- 
cerned. When  there  is  an  express  contract,  that  will  control ; 
if  the  rate  is  published,  the  vessel  impliedly  promises  to  pay  it 
when  she  uses  the  wharf;  such  publication  may  be  by  a  sign  or 
placard  on  the  wharf  or  by  any  other  method  of  conveying  actual 
notice  of  the  rate.  Where  there  is  no  express  agreement,  or 
published  rate,  there  is  an  implied  promise  to  pay  a  reasonable 
compensation  or  customary  charge  for  the  use  of  the  property. 
The  same  rule  applies  to  cases  of  overlapping,  where  a  vessel 
moored  at  one  wharf  projects  over  another  to  a  greater  or  less 
extent.  In  the  case  of  the  Hercules,  28  Fed.  475,  a  tug  80  feet 
long  habitually  used  a  wharf  of  only  59  feet  and  so  overlapped 
the  adjoining  wharf  although  she  did  not  actually  use  it  for  load- 
ing or  unloading.  The  proprietor  gave  a  general  notice  that  he 
would  claim  compensation  and  later  filed  his  libel  therefor.  The 
court  sustained  his  position,  but,  as  no  rate  had  been  named,  re- 


214  THE  LAW  OF  THE  SEA 

ferred  the  matter  to  a  commissioner  to  report  on  what  a  reason- 
able amount  would  be.  In  other  than  matters  of  private  wharfage, 
the  compensation  is  frequently  regulated  by  local  law. 

6.  Lien. —  There  is  a  maritime  lien  upon  a  vessel  for  wharfage 
in  all  cases  where  the  ship  is  foreign,  and,  by  the  weight  of  author- 
ity, this  lien  also  arises  in  the  case  of  domestic  vessels.  In  all 
cases  of  domestic  vessels,  however,  the  States  may  provide  liens 
for  wharfage,  by  local  statutes,  and  these  will  be  enforced  in  the 
admiralty  if  the  conditions  of  such  statutes  have  been  observed. 
It  has,  however,  been  rather  generally  held  that  this  lien  only  at- 
taches when  the  ship  is  actively  engaged  in  commerce  and  naviga- 
tion and  can  not  be  created  when  she  is  out  of  commission  and 
laid  up  for  storage  purposes.  So,  in  localities  where  navigation  is 
closed  during  the  winter  months,  it  is  said  that  there  is  no  lien 
for  winter  wharfage  and  intimated  that  the  proprietor  should 
secure  himself  under  his  common-law  lien  by  declining  to  surren- 
der possession  of  the  vessel  until  his  charges  are  paid.  The  lien 
has  also  been  given  a  high  rank,  under  some  decisions,  and  placed 
next  after  sailors'  wages,  although  the  propriety  of  this  may  seem 
open  to  question.  It  is  inferior  to  a  "  preferred  mortgage  "  given 
on  an  American  ship  pursuant  to  the  Merchant  Marine  Act  of 
1920  (see  Appendix).  It  is  essential,  of  course,  since  the  Hen 
depends  on  contract,  express  or  implied,  that  it  should  be  treated 
by  some  one  having  due  authority  to  pledge  the  credit  of  the 
ship. 

7.  Injuries  to  Wharves.— Cases  of  collision  between  ships 
and  wharves  are  very  frequent  and  the  damages  caused  thereby 
are  a  well  recognized  subject  of  marine  insurance  for  which  the 
underwriters  agree  to  indemnify  the  vessel  when  it  has  been  com- 
pelled to  pay  them.  Damage  to  the  wharf  can  not  be  recovered 
in  the  admiralty  because  the  tort  is  not  maritime ;  it  is  not  consum- 
mated upon  the  water  but  on  the  land  of  which  the  wharf  is  a 
part.  The  wharf  owner  must,  therefore,  sue  at  common  law 
or  under  local  statutes;  he  has  no  maritime  lien  for  the  injury. 
On  the  other  hand,  the  injuries  received  by  the  ship  are  consum- 
mated on  the  water  and  fall  within  the  jurisdiction  of  the  admir- 
alty ;  the  ship,  however,  can  not  libel  the  wharf  because  that  is  a 
fixed  structure  and  not  subject  to  maritime  liens;  its  remedy  is 
by  a  libel  in  personam  against  the  wharf  owner.  If  the  wharf 
is  a  lawful  structure  and  the  ship  negligently  runs  into  it,  full 


WHARFAGE  AND  MOORAGE        215 

damages  may  be  recovered  at  law.  Where  the  structure  is  unlaw- 
ful, the  ship  may  recover  its  damages,  in  whole  or  in  part,  as  the 
fault  may  lie,  in  an  admiralty  proceeding.  Atlee  v.  Union  Packet 
Co.,  21  Wall.  389,  was  a  case  where  a  barge  was  sunk  by  a  col- 
lision with  a  stone  pier  in  the  Mississippi  river  which  had 
been  placed  there  without  authority  of  law.  The  pilot  of  the 
barge  was  also  at  fault  in  assuming  to  take  her  through  the  chan- 
nel without  posting  himself  about  the  location  of  the  pier.  The 
proceeding  was  a  suit  in  admiralty  by  the  owner  of  the  barge 
against  the  owner  of  the  pier,  and,  both  being  considered  in  fault, 
the  damages  were  divided.  In  connection  with  the  subject  of 
admiralty  jurisdiction  it  should  be  noted  that  while  it  declines  to 
take  cognizance  of  the  damages  sustained  by  the  owners  of  fixed 
structures  from  collisions  with  vessels,  the  shipowners,  by  filing  a 
petition  under  the  Limited  Liability  Act,  may  draw  their  claims 
into  the  admiralty  and  enjoin  their  actions  at  common  law  (Rich- 
ardson 7".  Harmon,  222,  U,  S.  96.). 

Injuries  are  often  sustained  by  docks  and  wharves  when  vessels 
make  fast  thereto  in  stress  of  weather  and  can  not  leave  without 
exposing  themselves  to  destruction.  The  rule  is  that  the  ship- 
owner may  not  save  his  own  property  at  the  expense  of  the  wharf- 
owner  but  must  compensate  him  for  the  damage  done  by  his  ship, 
although  the  master  had  no  alternative  but  to  remain  as  he  did. 
Vincent  v.  Company,  109  Minn.  456,  is  a  decision  in  point,  and 
Button  V.  Strong,  i  Black  2^^,  should  be  read  in  the  same  connec- 
tion. 

8.  Anchorage. —  The  rights  of  navigation  are  usually  para- 
mount in  all  navigable  waters  and  the  right  of  anchorage  is  essen- 
tial for  a  full  enjoyment  of  such  rights.  These  waters  are,  in 
many  respects,  like  highways  on  the  land,  and  there  is  a  like  priv- 
ilege of  stopping  upon  them,  from  time  to  time,  as  an  incident  to 
the  right  of  travel  thereon,  subject  to  the  reasonable  requirements 
of  traffic  and  the  rights  of  abutting  property.  The  right  of  pas- 
sage extends  to  every  part  of  the  water,  but  the  right  of  anchor- 
age is  confined  to  such  places  as  are  usual  or  reasonable,  in  view 
of  local  conditions.  It  does  not  imply  the  power  to  remain  for 
long  periods  of  time  or  to  create  a  nuisance.  Charges  for  an- 
chorage may  be  made  by  the  owner  of  the  property  used  if  it  is 
an  artificial  one  so  that  his  work  in  improving  or  rendering  it 
accessible  forrns  a  consideration  for  the  amounts  required.     Gen- 


2i6  THE  LAW  OF  THE  SEA 

erally,  where  only  a  natural  roadstead  is  utilized  in  the  course  of 
navigation,  it  is  no  more  subject  to  expense  to  the  vessel  than  the 
temporary  stopping  of  a  vehicle  upon  a  street. 

The  vessel,  being  at  anchor  in  a  proper  place  and  otherwise 
complying  with  law,  is  not  liable  for  damages  sustained  by  colli- 
sion with  it,  but,  obviously,  will  have  a  strong  case  against  the  ship 
which  runs  her  down.  She  ought  not  to  anchor  in  an  exposed 
situation,  except  in  cases  of  necessity,  and  then  only  as  long  as  the 
necessity  prevails. 

g.  Obstructions  to  Navigation. — Anchored  vessels,  like 
wharves,  piers  and  the  like,  may  constitute  serious  obstructions  to 
navigation  but  this  does  not  give  others  the  right  to  run  them 
down.  Approaching  vessels  are  still  bound  to  use  ordinary  care 
and  skill  to  avoid  them.  It  is  the  duty  of  a  ship  under  way, 
whether  the  vessel  at  anchor  be  properly  or  improperly  anchored, 
to  avoid,  if  it  be  possible  with  safety  to  herself,  any  collision  what- 
ever, and  the  courts  have  frequently  held  that  even  if  a  ship  is 
brought  up  in  the  fairway  of  a  river,  if  the  other  could  with 
ordinary  care  have  avoided  her,  the  latter  will  be  held  solely  to 
blame.  In  the  case  of  the  Future  City,  184  U.  S.  247,  a  tug  and 
tow  descending  the  Mississippi  River  at  New  Orleans,  upon  round- 
ing a  point  came  in  collision  with  several  battleships  of  the 
United  States  Navy,  anchored  in  line  on  swinging  chains.  It  ap- 
peared that  they  had  taken  up  these  berths  in  the  fairway  for 
descending  vessels  contrary  to  the  usage  of  the  port  and  against 
the  advice  of  the  Board  of  Harbor  Masters,  who,  however,  had  no 
authority  over  naval  vessels.  There  was  abundance  of  good 
anchorage  elsewhere  in  the  harbor.  The  Supreme  Court  held  the 
Government  liable  for  the  negligent  anchoring  of  the  naval  vessels 
and  that  the  tug  was  -not  guilty  of  contributory  negligence  in 
being  unable,  after  rounding  the  point,  to  check  the  headway  which 
the  current  of  the  river  imparted  to  the  tow. 

The  Court  quoted  with  approval  the  language  of  Spencer  on 
Marine  Collisions: 

It  is  negligence  for  a  vessel  to  moor  so  near  the  entrance  to  a  har- 
bor that  shipping,  entering  in  stress  of  weather,  is  liable  to  become 
embarrassed  by  its  presence ;  and  where  the  usual  difficulties  of  navi- 
gation make  the  entrance  to  a  harbor  a  dangerous  undertaking,  it  is 
especially  reprehensible  for  a  vessel  to  moor  in  a  situation  tending 
to  increase  these  difficulties. 

Where  a  vessel  is  at  anchor  in  a  proper  place,  and  is  observant 


WHARFAGE  AND  MOORAGE        217 

of  the  precaution  required  by  law,  it  is  not  liable  for  damages  sus- 
tained by  a  vessel  in  motion  colliding  with  it,  but  where  it  anchors 
in  an  unlawful  position,  or  fails  to  observe  the  statutory  requirements 
and  such  other  precautions  as  good  seamanship  would  suggest,  it 
must  suffer  the  consequences  attending  a  violation  of  the  law. 

In  cases  like  these,  the  admiralty  is  inclined  to  follow  the  rule 
of  the  famous  donkey  case  (Davies  v.  Mann.,  10  M.  &  W.  546), 
where  the  owner  of  the  animal  had  fettered  its  forefeet  and,  in 
that  helpless  condition  turned  it  into  a  narrow  highway ;  then  the 
defendant's  wagon  came  along  very  fast  and  carelessly  and  the 
donkey  was  crushed ;  the  defendant  had  to  pay  for  it  because,  if 
the  driver  of  the  wagon  had  been  decently  careful,  the  conse- 
quences of  the  negligence  of  the  owner  of  the  donkey  would  have 
been  averted.  Any  vessel  not  "  under  way,"  as  when  aground, 
moored,  or  at  a  wharf,  is  in  the  position  of  anchored  vessel  and 
subject  to  similar  rights  and  liabilities. 


CHAPTER  XVII 

ADMIRALTY  REMEDIES 

One  of  the  reasons  for  the  continued  vitality  of  the  admiralty 
lies  in  the  efficiency  of  the  remedies  which  it  affords.  If  it  were 
not  for  these  it  is  quite  possible  that  it  would  long  since  have  been 
absorbed  by  the  common  law  as  was  the  law  merchant  many 
years  ago.  Parties  having  rights  to  enforce  will  usually  resort 
to  the  admiralty  in  preference  to  any  other  court  if  the  selection 
is  open  to  them.  This  is  not  so  much  by  reason  of  any  difference 
in  the  law  as  in  the  methods  of  its  application.  Admiralty  reme- 
dies may  be  divided  into  proceedings  in  rem,  in  personam,  and 
under  the  Limited  Liability  Act. 

I.  Proceedings  in  Rem. —  This  procedure  is  peculiar  to  the 
American  admiralty  and  does  not  exist  in  the  common  law.  As 
the  name  indicates,  it  is  directed  against  the  thing  itself  to  enforce 
property  rights  which  inhere  in  it,  mainly  maritime  liens.  It 
belongs  to  the  courts  of  admiralty  exclusively  and  similar  reme- 
dies attempted  to  be  given  by  state  statutes  are  unconstitutional 
and  void.  The  characteristic  feature  of  this  proceeding  is  that 
the  vessel  or  thing  proceeded  against  is  itself  seized  and  im- 
pleaded as  the  defendant  and  is  judged  and  sentenced  accord- 
ingly. Sales  made  under  it  are  good  against  all  the  world  while 
at  common  law  it  is  only  the  title  of  the  defendant  which  is 
affected  and  the  title  conveyed  can  never  be  better  than  his  own. 
The  nature  of  the  proceeding  is  more  apparent  when  it  is  noted 
that  the  admiralty  personifies  the  ship  and  considers  her  capable 
of  incurring  legal  obligations  entirely  irrespective  of  her  owner's 
personal  responsibility  therefor.  There  is  no  such  doctrine  in 
the  common  law. 

American  courts  of  admiralty  —  that  is  to  say,  the  United  States 
district  courts  —  take  jurisdiction  in  rem  not  only  of  domestic 
vessels  but  of  ships  flying  foreign  flags,  and  of  controversies  or- 
iginating on  the  high  seas  and  in  foreign  waters.  The  test  is, 
whether  the  subject  matter  is  within  admiralty  jurisdiction.  The 
admiralty  courts  are  not  bound  to  take  jurisdiction  of  contro- 

218 


ADMIRALTY  REMEDIES  219 

versies  between  foreigners,  but  they  may  exercise  it  in  their 
discretion  and  frequently  do  so,  applying  the  principles  of  inter- 
national law  or  the  lex  loci  contractus.  In  the  exercise  of  their 
discretion  to  take  jurisdiction  of  suits  between  foreigners,  the 
courts  give  consideration  to  the  wishes  of  consuls  of  the  nations 
involved,  though  they  are  not  bound  to  do  so.  The  United  States 
courts  have  jurisdiction  in  rem  for  supplies  furnished  American 
ships  in  foreign  ports  and  foreign  ships  in  American  ports.  They 
may  in  their  discretion  take  jurisdiction  of  claims  for  wages  by 
foreign  seamen  against  foreign  ships  in  American  ports,  and,  of 
course,  of  claims  of  American  seamen  against  foreign  ships. 
The  principle  upon  which  the  court  is  to  determine  whether  to 
exercise  jurisdiction  is  whether  the  rights  of  the  parties  would 
best  be  served  by  retaining  the  cause  or  remitting  it  to  the  foreign 
court. 

Foreign  governments  sometimes  own  or  operate  merchant  ves- 
sels, and  a  serious  question  arises,  as  yet  undetermined  by  the 
Supreme  Court,  whether  such  vessels  are,  like  naval  vessels,  ex- 
empt from  maritime  liens,  or  whether  they  are  subject  to  the 
process  in  rem  of  the  admiralty  courts.  By  the  act  of  March  9, 
1920,  Shipping  Board  vessels  are  immune  from  arrest,  but  pro- 
vision is  made  for  suit  in  personam  against  the  government. 
Vessels  of  the  Panama  Railroad,  although  it  is  a  government 
agency,  are  subject  to  suits  in  rem. 

2.  When  Proceedings  in  Rem  Will  Lie. —  Generally  speak- 
ing, every  maritime  lien  includes  the  right  to  enforce  it  by  a  pro- 
ceeding in  rem.  The  person  who  has  a  maritime  lien  upon  a 
vessel  is  entitled  to  proceed  directly  against  her  in  a  court  of  ad- 
miralty for  the  locality  in  which  she  happens  to  be.  Thus  in  all 
suits  by  materialmen  for  supplies,  repairs,  or  other  necessaries; 
in  all  suits  for  mariners'  wages,  pilotage,  collision,  towage,  hy- 
pothecation, bottomry,  salvage,  and  the  like,  the  process  may  be 
in  rem. 

3.  The  Libel. —  No  process  or  writ  can  be  issued  by  a  court 
of  admiralty  before  a  libel  is  filed  in  the  clerk's  office.  A  libel  is 
the  statement  of  the  party's  claim  and  the  relief  or  remedy  which 
he  desires.  It  states  the  nature  of  the  cause,  for  example,  that 
it  is  of  contract,  or  of  tort  or  damage,  or  salvage,  as  the  case 
may  be;  the  ship,  or  property,  against  which  the  claim  is  made 
and  that  it  is,  or  soon  will  be,  within  the  district ;  the  facts  upon 


220  THE  LAW  OF  THE  SEA 

which  the  claim  is  based ;  and  the  relief  sought.  For  convenience, 
it  should  be  expressed  in  concise  paragraphs  or  articles,  and,  of 
course,  must  state  a  case  within  the  jurisdiction  of  the  court. 

4.  The  Writ  or  Process. —  Upon  a  libel  being  properly  filed 
in  the  office  of  a  clerk  of  a  district  court  of  the  United  States,  a 
writ  of  attachment  is  prepared  and  delivered  to  the  marshal  which 
commands  him  to  arrest  and  take  the  ship,  goods  or  other  things 
into  his  possession  for  safe  custody ;  and  to  cause  public  notice 
thereof,  and  of  the  time  fixed  for  the  return  of  the  writ  and  the 
hearing  of  the  cause,  to  be  given  in  such  newspaper  within  the 
district  as  the  court  shall  order.  It  is  then  the  duty  of  the  mar- 
shal to  obey  the  writ,  arrest  the  property  and  give  due  notice  ac- 
cording to  law. 

5.  Owner's  Rights. —  The  owner  whose  vessel  is  seized  in  ad- 
miralty is  entitled  to  release  her  immediately  by  giving  a  bond  to 
secure  payment  of  the  libellant's  claim.  This  bond  may  be  in 
double  the  amount  of  the  claim,  or  for  such  smaller  amount  as 
may  be  agreed  upon  between  the  parties,  or  for  the  appraised 
value  of  the  ship.  In  practice,  such  bonds  are  usually  arranged 
between  the  parties  and  their  proctors  ^  without  the  expense  and 
delay  incident  to  an  actual  seizure.  It  is  not  unusual  to  notify 
the  owner  of  the  commencement  of  the  suit  before  process  is 
issued  and  he  will  generally  agree  to  appear  and  bond  accordingly. 
This,  however,  is  only  courtesy  and  not  a  matter  of  right.  At  the 
same  time  the  amount  of  the  bond  can  be  arranged  and,  when 
filed,  the  suit  proceeds  as  if  there  had  been  an  actual  arrest  and 
bonding.  The  bond  takes  the  place  of  the  ship  for  all  legal  pur- 
poses and  she  proceeds  about  her  business  entirely  freed  from  the 
lien  in  suit. 

The  owner  must  establish  his  status  with  the  court  by  filing  a 
claim.  This  is  a  formal  statement  on  oath  of  his  title  to  the 
property.  If  he  desires  to  contest  the  libellant's  demand,  he  must 
file  an  answer  to  the  libel.  The  cause  is  then  at  issue  and  will  be 
disposed  of  by  the  judge  in  due  course.  The  time  will  depend 
largely  on  the  parties. 

6.  Default. —  If  the  owner  does  not  claim  and  bond  his  ship  on 
the  return-day  named  in  the  writ,  the  libellant  may  take  his  de- 
fault.    The  court  tlien   investigates   the   demand   ex   parte   and 

1  In  admiralty  an  attorney  is  called  a  proctor.  The  term  is  being  gen- 
erally abandoned. 


ADMIRALTY  REMEDIES  221 

makes  an  appropriate  decree  for  the  sale  of  the  ship  to  satisfy  the 
amount  due. 

7.  Interlocutory  Sales. —  When  the  property  remains  in  the 
custody  of  the  marshal  and  is  subject  to  undue  expense  or  risk  of 
loss,  the  court  may  order  its  immediate  sale  for  the  benefit  of  all 
concerned.  The  proceeds  are  paid  into  the  registry  of  the  court 
and  represent  the  ship  for  all  purposes  up  to  the  time  of  the  sale. 
The  purchaser  at  such  a  sale,  as  well  as  at  a  sale  under  a  final 
decree,  obtains  a  clear  and  perfect  title,  if  the  proceedings  have 
been  in  accordance  with  law.  All  claims  and  liens  are  relegated 
to  the  proceeds. 

8.  Intervenors. —  All  persons  legally  interested  in  a  ship  are 
entitled  to  appear  and  be  heard  by  the  court  when  she  is  in  the 
custody  of  a  court  of  admiralty.  Such  are  parties  having  other 
maritime  liens  upon  her  and  mortgagees.  Their  claims  are  pre- 
sented, pursuant  to  the  public  notice  given  by  the  marshal,  by 
intervening  libels  or  petitions  and  they  are  called  intervenors. 
The  form  of  such  petitions  is  substantially  like  that  of  an  original 
libel.  Generally  when  an  owner  will  not  bond  his  ship,  she  has 
become  heavily  in  debt  and  all  her  creditors  will  be  obliged  to 
intervene  in  the  proceeding  in  order  to  protect  their  accounts.  A 
sale  is  accomplished  and  the  proceeds  brought  into  court  as  soon 
as  possible.  Distribution  is  then  made  between  the  various  henors 
according  to  their  rank  and  priority.  Any  surplus  will  belong 
to  the  owner  and  he  may  obtain  it  at  any  time  before  it  is  covered 
into  the  Treasury  of  the  United  States  as  unclaimed  funds. 

9.  Costs  and  Expenses. —  These  are  largely  within  the  control 
of  the  parties  and  become  heavy  only  to  the  extent  that  the  court 
is  burdened  with  the  care  of  the  property  or  its  proceeds.  If 
promptly  bonded,  the  necessary  costs  are  very  small.  If  the 
marshal  remains  in  possession,  his  costs  will  include  ship-keeper's 
charges  and  all  other  expenses  which  the  situation  occasions.  If 
he  sells,  there  will  be  his  commission  on  the  amount  realized, 
2^/2  per  cent,  on  sums  under  five  hundred  dollars  and  i>4  per  cent, 
on  sums  in  excess ;  the  clerk  will  be  entitled  to  a  commission  of 
I  per  cent,  for  handhng  the  proceeds.  His  other  necessary  costs 
are  small.  Where,  however,  there  is  prolonged  litigation,  the 
expenses  may  become  very  heavy,  especially  in  respect  of  ste- 
nographer's accounts  and  the  fees  of  commissioners  to  whc«n  mat- 
ters of  detail  may  be  referred. 


222  THE  LAW  OF  THE  SEA 

10.  Proceedings  in  Personam. —  Suits  may  also  be  brought 
against  a  defendant  personally  in  the  admiralty,  where  the  sub- 
ject matter  is  maritime  and  a  personal  liability  exists.  Such  a 
liability  always  attaches  to  the  person  who  made  the  contract  or 
did  the  wrong  for  which  the  action  is  brought.  In  a  few  instances 
of  maritime  torts,  like  assaults  and  beatings  on  the  high  seas,  the 
remedy  is  in  personam  only. 

11.  Process  in  Personam. —  The  writ  here  is  usually  a  simple 
monition  or  summons  to  appear  and  answer  the  libel,  like  the  ordi- 
nary writ  in  an  action  at  law,  but  where  the  defendant  cannot  be 
found  within  the  district,  it  may  contain  a  clause  for  the  attach- 
ment of  his  goods  and  chattels,  or  garnishment  of  his  credits  and 
effects.  This  proceeding  is  often  very  effective  in  obtaining  secu- 
rity for  the  judgment  when  the  proceeding  in  rem  cannot  be 
employed. 

12.  Proceedings  in  Limitation  of  Liability. —  The  shipowner 
is  entitled  to  limit  his  liability  on  account  of  the  ship  to  its  value 
in  many  cases  and  the  General  Admiralty  Rules  promulgated  by 
the  Supreme  Court  provide  a  very  valuable  proceeding  for  this 
purpose.  In  substance,  whenever  an  owner  is  threatened  with  a 
multiplicity  of  suits  on  account  of  damage  done  by  his  ship,  or  by 
a  claim  or  claims  in  excess  of  her  value,  and  he  is  not  personally 
liable  on  such  account,  he  may  file  a  petition  in  the  proper  court 
and  surrender  the  ship  to  a  trustee  or  give  a  bond  for  her  ap- 
praised value.  All  other  suits  are  thereupon  stayed  and  all  cred- 
itors must  present  their  claims  in  the  proceeding  which  he  has  so 
instituted.  In  effect,  it  is  a  maritime  bankruptcy  by  which  the 
ship,  or  her  value,  is  surrendered  to  creditors  for  pro  rata  divi- 
sion and  the  owner  goes  free  from  further  claims.  It  is  the  appli- 
cation of  one  of  the  underlying  doctrines  of  the  maritime  law  by 
which  a  shipowner,  on  abandoning  the  ship,  can  protect  himself 
from  further  responsibility  on  her  account. 


APPENDICES 


APPENDIX   I 

SUMMARY  OF  NAVIGATION  LAWS  OF  THE 
UNITED  STATES 

Jasper  Yeates  Brinton* 

I.    Ship    Registry 228 

General 228 

Registry    and    Nationality 228 

Registry  and  the  Flag 229 

Registry  and  Ownership 229 

Vessels  Entitled  to  American   Registry 229 

Forms  of  Register,  Enrollment  and  License 231 

Restrictions    as   to    Coastwise    Trade 231 

Procedure  for  Documenting  Vessels 232 

1.  Presentation    of    Carpenter's    Certificate 232 

2.  Surveyor's    Certificate    of    Measurement 232 

3.  Securmg  and  Marking  of  Official  Number  ....  233 

4.  Marking  of  Official  Tonnage 233 

5.  Marking  of   Name  and  Home   Port 233 

6.  Evidence  that  Number.  Tonnage,  Name  and  Home 

Port  are  Properly  Marked 234 

7.  Owner's  Oath 234 

8.  Master's  Oath 235 

9.  Special  Oath  by  a  Corporation 235 

10.  Evidence  of  Outstanding  Certificate  of  Inspection     .  235 

Bill  of  Sale  Not  Required  on  Original  Documentation    .  236 
Surrender  and  Reissue  of  Documents 236 

II.  Recording  of  Bills  of  Sale 2^7 

III.  Preferred  Mortgages   under  Merchant  Marine  Act  ....  238 

IV.  Change  of  Name 240 

V.  Entry  and  Clearance 241 

VI.    Shipping  Articles 242 

VII.    Licensing  and  Qualifications  of  Officers 244 

VIII.    Qualifications  of  Seamen 245 

Age 246 

Service  and  Physical  Qualification 246 

Lifeboat  Men 246 

Language 246 

»0£  the  Philadelphia  Bar. 

225 


22(> 


APPENDICES 


IX.    Nationality  of  Officers  and  Crew 246 

Officers 246 

Crew 247 

X,    Wages 247 

Advances 247 

XL    Watch  and  Watch  and  Work-Day 248 

XII.     Provisions   for   Crew 249 

Sleeping  Quarters 249 

Washing  Places 249 

Provisions    Scale 249 

Hospital  Accommodations 250 

Warm  Room  and  Woolen  Clothing 250 

XIII.  Personal  Injuries  to  Seamen  and  Recoveries  for  Death    .  250 

XIV.  Offenses  by  Seamen 251 

Mutiny,  Desertion  and  Disobedience 251 

Miscellaneous  Offenses 252 

Assistance  in  Case  of  Collision 252 

XV.  Rules  of  the  Road 253 

XVI.  Pilotage 253 

XVII.  Length  of  Hawsers 254 

XVIII.  Inspection  of  Steam  Vessels * 255 

Barges _ 255 

The  Certificate  of  Inspection 255 

Manning    of    Inspected    Vessels 256 

XIX.    Register  of  Tonnage 256 

XX.    Tonnage  Taxes 257 

XXI.    Navigation   Fees 258 

XXII.    Annual  List  of  Merchant  Vessels 258 

XXIII.  Numbering  of  Undocumented  Motor  Boats 258 

XXIV.  Administration  of  Navigation  Laws 259 

Commissioner   of   Navigation 259 

Steamboat  Inspection  Service 259 

Shipping    Commissioners 260 

XXV.    The  Shipping  Board .260 


SUMMARY  OF  THE  NAVIGATION  LAWS  OF  THE 
UNITED  STATES 


While  the  navigation  laws  of  the  United  States  are  in  many  re- 
spects the  most  advanced  and  progressive  of  any  in  the  world,  the 
form  in  which  they  exist  is  far  from  satisfactory  and  is  a  serious 
handicap  on  their  usefulness.  They  are  voluminous  and  complicated 
and  in  much  confusion.  Even  on  comparatively  simple  topics  it  is 
often  impossible  to  distinguish  the  law  of  to-day  from  the  law  of 
yesterday. 

The  reason  is  not  hard  to  find.  It  Hes  in  the  fact  that  these  laws 
represent  one  of  the  oldest  bodies  of  statute  law  in  the  books,  and  for 
well  over  a  century  have  been  subject  to  a  steady  piecemeal  amend- 
ment, but  with  little  or  no  attempt  at  revision  or  codification.  The 
result  is  that  on  almost  every  subject  there  is  a  bewildering  over- 
growth of  laws  —  law  after  law  covering  and  partly  modifying,  but 
seldom  explicitly  repealing,  the  older  law,  which  thus  remains  as  a 
stumbling  block  to  even  the  expert  reader. 

A  complete  revision  is  urgently  needed  and  has  been  undertaken 
by  the  Shipping  Board.  In  the  meantime,  it  is  of  course  desirable  that 
knowledge  of  the  laws  as  they  exist  shall  be  made  as  conveniently 
accessible  as  possible  and  the  summary  herewith  is  presented  as  a 
contribution  towards  that  end.  It  does  not  pretend  to  be  either  com- 
plete or  exhaustive,  but  merely  undertakes  to  cover  very  generally 
the  principal  topics,  with  a  somewhat  more  extended  reference  to 
the  practical  aspects  of  ship  registry  as  embodied  not  only  in  the 
laws  but  in  the  regulations  and  practices  which  have  grown  up  around 
them. 

Most  of  the  statutes  which  have  been  summarized  herein  except  the 
recent  Merchant  Marine  Act  (Jones  Bill)  and  other  laws  of  this  year 
will  be  found  in  the  600  page  compilation  of  the  Navigation  Laws 
(1919)  prepared  with  the  thoroughness  and  accuracy  to  be  looked  for 
from  any  work  issued  under  the  direction  of  the  present  Commissioner 
of  Navigation.  It  may  be  procured  from  the  Superintendent  of  Doc- 
uments, Washington,  at  the  cost  of  one  dollar.  Subject  to  the 
obvious  limitations  on  any  compilation  which  must  necessarily  include 
a  large  body  of  conflicting  and  practically  obsolete  statutes,  the  work 
is  in  every  respect  admirable.     The  volume,  however,  is  confined  to 


227 


228  APPENDICES 

statute  law,  and  for  much  of  the  practical  information  covering  those 
branches  of  operation  of  ships  involving  the  agency  of  the  customs 
service,  including  the  documentation  of  vessels,  reference  must  be 
had  to  the  Customs  Regulations,  the  last  edition  of  which  was  pub- 
lished under  date  of  191 5,  and  which  may  also  be  secured  from  the 
Superintendent  of  Documents. 

In  addition  to  these  two  principal  compilations  reference  should 
also  be  made  to  the  series  of  Rules  and  Regulations  of  the  Board 
of  Supervising  Inspectors,  issued  by  the  Steamboat  Inspection  Ser- 
vice, Department  of  Commerce,  to  the  various  publications  of  the 
Department  covering  the  Rules  of  the  Road,  the  International  Rules, 
the  Inland  Rules,  and  the  Pilot  Rules,  respectively,  together  with  the 
notable  series  of  pamphlets  issued  by  the  Department  from  time  to 
time,  covering  such  special  subjects  as  the  Measurement  of  Vessels, 
the  Comparative  Study  of  Navigation  Laws  of  the  Maritime  Nations, 
and  other  similar  topics.  So  far  as  the  writer  is  aware,  however, 
there  is  no  volume  which  contains  any  general  summary  of  the  whole 
body  of  our  navigation  laws. 

I.     Ship  Registry 

General. —  Under  the  power  to  regulate  commerce  Congress,  among 
its  earliest  enactments,  adopted  a  system  of  ship  registry  for  Ameri- 
can-owned bottoms  and  created  the  class  of  vessels  to  be  known  as 
"  vessels  of  the  United  States."  The  purpose  of  establishing  this 
system  was  the  double  one  of  encouraging  domestic  commerce  and 
of  building  up  our  national  defense.  It  did  not  require  and  (with 
certain  war-time  exceptions)  has  never  required  that  American- 
owned  ships  should  be  registered,  but  by  imposing  prohibitory  penal- 
ties on  foreign  trade  in  American-owned  vessels  which  are  not  reg- 
istered, and  by  closing  the  coasting  trade  entirely  to  all  except 
American-owned  vessels  (or  vessels  operating  during  war  time  under 
special  permission  of  the  Shipping  Board)  it  made  the  securing  of 
appropriate  documents  —  a  register  —  an  enrollment  and  license  — 
or  a  simple  license,  as  the  case  may  be, —  a  practical  necessity  for 
American-owned  vessels  engaged  in  American  trade.  In  passing  it 
is  to  be  noted  that  while  a  ship's  registry  is  a  special  document,  dis- 
tinguished from  the  enrollments  and  licenses  of  smaller  vessels,  the 
word  registry  is  commonly  used  as  covering  generally  all  three  classes 
of  documentation. 

Registry  and  Nationality. —  While  vessels,  like  citizens,  are  com- 
monly said  to  have  a  nationality,  their  nationality  is  not  necessarily 
a  matter  of  registry.  Nationality  means  rather  —  To  what  country 
does  the  ship  in  fact  belong  and  to  whose  protection  is  she  entitled? 
As  far  as  the  United  States  is  concerned  this  nationality  —  this  right 
to  protection  —  depends  upon  ownership. 

Therefore,  if  a  ship  is  actually  owned  by  American  citizens,  her 
nationality  is  American,  and  she  is  entitled  to  the  protection  accorded 
to  American  property  all  the  world  over,  regardless  of  the  fact  that 


NAVIGATION  LAWS  229 

for  any  reason  she  may  not  be  entitled  to,  or  may  not  desire  to  take, 
American  registry. 

Registry  and  the  Flag —  In  the  same  way,  the  right  to  fly  the 
American  flag  is  not  dependent  upon  American  registry,  but  upon 
American  ownership.  The  flag  is  only  the  symbol  of  nationality  and 
of  a  right  to  protection.  It  is  the  signal  to  other  vessels  at  sea  — 
conveying  information  as  to  nationality,  just  as  her  other  signals 
are  used  to  convey  the  name  of  the  private  owner  or  of  the  line  to 
which  she  belongs.  It  follows  that  the  American  flag  may  be  flown 
upon  any  vessel  owned  by  American  citizens.  For  many  years  ves- 
sels of  this  character  flying  the  American  flag  have  been  familiar 
in  the  trade  in  the  Far  and  Near  East. 

The  rule  as  to  the  use  of  a  flag  is  somewhat  different  and  more 
strict  in  England.  Under  the  Merchant  Shipping  Acts  the  use  of  a 
British  flag  on  board  a  ship  owned  either  in  whole  or  in  part  by  per- 
sons not  lawfully  qualified  to  own  a  British  ship,  subjects  the  ves- 
sel to  forfeiture.  But  there  are  no  such  provisions  in  the  law  of  the 
United  States  and  questions  as  to  the  improper  use  of  the  flag  of  this 
country  upon  vessels  have  not  arisen,  although  occasional  diplomatic 
negotiations  have  been  undertaken  to  prevent  the  use  of  the  American 
flag  in  foreign  countries.  Generally  speaking  it  may  be  said  that  the 
United  States  has  been  extremely  lax  in  regulating  the  use  of  her  flag. 

Registry  and  Ownership. —  Just  as  registry  is  not  necessary  to  give 
nationality,  with  its  corresponding  right  to  protection,  so  it  is  true 
that  the  transfer  of  title  to  ships  is  not  dependent  upon  its  registry 
laws.  While  title  to  a  ship  must  be  passed  by  bill  of  sale,  this  does 
not  depend  upon  any  requirement  of  the  United  States  law,  but 
arises  out  of  the  general  maritime  law.  It  is  only  in  the  case  of 
ships  that  are  to  be  registered  or  enrolled  that  it  is  necessary  that  the 
transfer  be  made  according  to  the  particular  and  very  specific  form 
prescribed  by  the  registry  acts. 

Vessels  Entitled  to  American  Registry — Under  the  early  ship  reg- 
istry acts,  and  for  a  period  of  over  120  years,  American  registry  was 
confined  to  American-built  ships.  Such  alone  were  "  deemed  vessels 
of  the  United  States,  and  entitled  to  the  benefits  and  privileges  apper- 
taining to  such  vessels."  As  already  noted,  these  privileges  were,  in 
effect,  the  right  to  engage  in  American  trade. 

In  1892,  a  special  act  was  passed  granting  American  registry  to 
certain  foreign-built  vessels  of  the  American  Line  under  conditions 
as  to  the  building  of  other  vessels,  but  this  was  a  special  and  very 
limited  proviso. 

The  Panama  Canal  Act  of  1912,  however,  made  a  radical  change 
in  our  policy  and  opened  American  registry  to  foreign-built  vessels 
not  over  five  years  old,  owned  by  American  citizens,  although  deny- 
ing to  these  vessels  the  privilege  of  entering  the  coasting  trade. 

The  Ship  Registry  Act  of  19 14  went  a  step  farther  and  removed 
the  limitation  as  to  age,  and  also  authorized  the  President  to  suspend, 
as  to  these  vessels,  the  rigorous  provision  that  the  watch  officers  of 


230  APPENDICES 

all  vessels  engaged  in  foreign  trade  should  be  citizens  of  the  United 
States.  This  authority  was  exercised  by  the  President  and  many 
such  vessels  have  been  registered. 

In  1915  a  law  was  passed  to  facilitate  the  transfer  of  American- 
owned  vessels  from  foreign  to  domestic  registry  by  a  repeal  of  the 
prohibitory  duties  on  such  vessels  on  condition  that  before  leaving 
an  American  port  they  should  secure  the  necessary  documentation. 

The  Shipping  Act  of  1916,  as  amended  in  1918,  and  again  by  the 
Merchant  Marine  Act  of  1920,  further  enlarged  the  scope  of  the  reg- 
istry laws  by  providing  that  vessels  (whatever  their  previous  history) 
purchased,  chartered  or  leased  from  the  Board  by  citizens  of  the 
United  States  may  be  registered,  or  enrolled  and  licensed,  or  both 
enrolled  and  licensed,  as  vessels  of  the  United  States  and  entitled  to 
the  benefits  and  privileges  of  such  documentation. 

The  various  classes  of  vessels  now  entitled  to  registry  under  these 
laws  may  be  thus  divided : 

(i)  American-built  vessels  which  have  always  b^en  American- 
owned  ; 

(2)  American-built  vessels  formerly  owned  by  foreign  owners,  but 
subsequently  purchased  by  American  citizens; 

(3)  Vessels  captured  in  war  lawfully  condemned  and  owned  by 
citizens; 

(4)  Vessels  forfeited  for  breach  of  the  laws; 

(5)  American-built  vessels  sold  by  the  government  to  citizens,  and 
foreign-built  vessels  bought  or  chartered  by  the  government  and  sold 
to  citizens ; 

(6)  Vessels  whose  documentation  is  authorized  by  special  act; 

(7)  Wrecked  vessels  purchased  by  citizens  and  repaired  in  Ameri- 
can shipyards  on  proof  that  the  repairs  are  equal  to  three  times  the 
appraised  salved  value;  this  is  a  special  permission  which  is  a  dead 
letter  except  as  to  the  coastwise  trade,  as  wrecks  can  now  be  admitted 
to  registry  for  foreign  trade  regardless  of  the  amount  of  repairs; 

(8)  Vessels  for  foreign  trade  wherever  built,  wholly  owned  by 
citizens  of  the  United  States; 

(9)  Vessels  purchased,  chartered  or  leased  from  the  Shipping 
Board  by  citizens  of  the  United  States. 

Barges,  lighters  and  other  boats  provided  with  sails  or  internal 
motive  power,  if  falling  within  these  classifications,  are  entitled  to 
documents,  as  also  barges  and  boats  without  sails  or  internal  motive 
power  engaged  in  the  Canadian  trade  or  employed  upon  the  marine 
waters  of  the  United  States  or  engaged  in  the  carriage  of  passengers. 

The  following  classes  of  vessels  are  not  within  the  provisions  of 
the  registry  laws  and  therefore  require  no  documents: 

(i)  Boats  or  lighters  not  masted,  or  if  masted  and  not  decked,  em- 
ployed in  the  harbor  of  any  town  or  city  and  not  carrying  passengers. 

(2)  Barges  or  canal  boats  or  boats  without  sails  or  internal  motive 
power  employed  wholly  upon  canals  or  on  the  internal  waters  of  the 
state  and  not  engaged  in  trade  with  contiguous  foreign  territory  and 
in  carrying  passengers ; 


NAVIGATION  LAWS  231 

(3)  Barges  or  boats  without  sail  or  motive  power,  plying  on  inland 
rivers  or  lakes  of  the  United  States,  also  not  engaged  in  trade  with 
contiguous  foreign  territory  and  in  carrying  passengers; 

(4)  Vessels  plying  waters  wholly  within  the  limits  of  the  state 
having  no  outlet  into  a  river  or  lake  on  which  commerce  with  foreign 
nations  or  among  the  states  can  be  carried  on. 

Forms  of  Register,  Enrollment  and  License. —  The  Law  provides 
for  three  classes  of  documents:  (i)  A  Register;  (2)  An  Enrollment 
and  License;  (3)  A  License. 

Originally  the  license,  which  is  applicable  only  in  the  coasting  trade, 
was  an  altogether  separate  document  from  the  enrollment,  the  form 
of  each  document  being  provided  by  statute.  In  1906,  however,  the 
two  documents  were  consolidated  into  one,  so  far  as  enrolled  vessels 
were  concerned,  leaving  the  license  only  to  be  required  in  the  case  of 
smaller  vessels.  As  the  law  now  stands  these  documents  are  distin- 
guished as  follows: — 

Registry  is  required  for  vessels  engaged  in  the  foreign  trade  and  in 
the  trade  with  our  insular  possessions,  except  Hawaii  and  Porto  Rico, 
and  is  permitted  to  vessels  engaged  in  the  domestic  trade  under  cer- 
tain requirements  as  to  entry  at  the  Custom  House  when  laden  with 
certain  commodities,  etc.     There  is  but  a  single  form  of  register. 

Enrollment  of  License  is  required  for  vessels  of  twenty  tons  or 
over  when  engaging  in  the  coasting  trade.  Separate  forms  are  is- 
sued for  the  coasting  trade  or  fisheries,  and  for  yachts. 

License  alone  is  required  for  vessels  between  five  and  twenty  tons 
when  likewise  engaged  in  the  coasting  and  fishing  trade. 

Vessels  of  less  than  five  tons  may  not  be  licensed,  nor  may  pleasure 
vessels  of  less  than  sixteen  tons  be  documented  except  under  special 
instructions  from  the  Department  of  Commerce. 

In  general  form  and  purpose  these  documents  closely  resemble  each 
other  and  further  consolidation  and  simplification  is  badly  needed. 

Restrictions  as  to  Coastwise  Trade. — From  1817  until  the  recent 
war  the  coastwise  trade  of  the  United  States  was  limited  to  vessels 
of  the  United  States.  This  restriction,  however,  was  removed  by  the 
shipping  Act  of  1916.  Under  this  act  (§  9)  the  Shipping  Board  was 
authorized  generally  (with  certain  very  limited  exceptions)  to  pur- 
chase, lease  and  charter  vessels  suitable  for  its  purposes,  regardless 
of  whether  foreign-built  or  not,  and  also  to  sell  .and  charter  the  same 
to  citizens  of  the  United  States,  such  vessels  being  entitled  to  Amer- 
ican registry.  As  to  all  such  vessels  the  Act  specifically  provided 
that  they  should  be  permitted  to  engage  in  the  coastwise  trade.  This 
privilege  was  also  extended  to  vessels  owned,  chartered  or  leased  by 
the  Emergency  Fleet  Corporation  (see  §  XXV,  below). 

In  addition,  under  an  act  passed  in  1917,  the  Shipping  Board  was 
given  authority  in  its  discretion  to  permit  vessels  0/  foreign  registry, 
and  foreign-built  vessels  which  had  been  admitted  to  American  reg- 
istry under  the  Act  of  1914,  already  referred  to,  to  engage  in  coast- 
wise trade  during  the  war,  and  for  three  months  thereafter. 


2^2 


APPENDICES 


This  latter  act  has  been  in  terms  repealed  by  the  Merchant  Marine 
Act  of  1920,  but  with  the  proviso  (§  22)  that  all  foreign-built  vessels 
admitted  to  American  registry,  which  were  owned  on  February  i, 
1920,  by  citizens  of  the  United  States,  and  all  foreign-built  vessels 
owned  by  the  United  States  on  the  date  of  the  signing  of  the  Act 
(June  5,  1920),  when  sold  and  owned  by  citizens  of  the  United  States, 
may  engage  in  the  coastwise  trade  so  long  as  they  continue  in  such 
ownership. 

The  general  policy  above  outlined  is  supplemented  by  a  further 
proviso  of  the  Merchant  Marine  Act  {%  2y)  forbidding  the  transpor- 
tation of  merchandise  between  points  in  the  United  States,  or  such  of 
its  possessions  as  are  subject  to  the  operation  of  the  coastwise  laws, 
in  any  other  than  documented  vessels  of  the  United  States,  owned  by 
citizens  of  the  United  States,  except  in  the  case  of  the  vessels  to 
whom  the  privilege  has  been  extended  by  the  provisions  above  re- 
ferred to. 

Procedure  for  Documenting  Vessels. —  Marine  documents  are  issued 
by  the  Collectors  of  Customs  for  the  various  collection  districts,  one 
district  frequently  including  several  ports.  The  District  of  Phila- 
delphia, for  instance,  includes  Camden,  Gloucester  City,  Chester, 
Somers  Point,  Tuckerton,  Thompson's  Point,  Wilmington  and  Lewes. 

Practically  each  step  in  the  process  of  securing  the  ship's  papers 
is  marked  by  the  production  or  issuance  of  one  or  other  of  a  number 
of  important  documents.     These  steps  are  as  follows: 

1.  Presentation  of  Carpenter's  Certificate. —  The  Carpenter's  Cer- 
tificate, sometimes  referred  to  as  the  Master  Carpenter's  Certificate 
or  Builder's  Certificate,  is  the  starting  point  of  the  vessel's  official 
status  in  the  eyes  of  the  government,  and  is  the  first  document  to  be 
produced  before  the  Collector.  It  is  the  vessel's  birth  certificate,  and 
is  required  in  order  to  fix  the  origin  of  the  vessel,  to  secure  and  place 
on  record  the  best  evidence  as  to  the  date  and  place  of  its  building, 
the  name  of  its  builder,  and  its  general  description,  given  under  the 
oath  of  the  builder.  For  the  purpose  of  this  certificate  the  time  of 
building  is  the  time  of  completion ;  the  place  of  building  is  that  where 
the  hull  was  built.  Both  of  these  facts  must  appear  on  all  marine  doc- 
uments. The  Carpenter's  Certificate  is  not  a  document  of  title  and 
does  not  of  itself  vest  any  interest  in  the  person  holding  it.  It  is 
sufficient  to  authorize  the  vessel  to  be  removed  from  the  district 
where  she  has  been  built  to  another  district  in  the  same  or  an  adjoin- 
ing State  where  its  owner  resides,  provided  it  be  in  ballast  only. 
This  document  is  filed  of  permanent  record  in  the  Custom  House 
where  the  vessel  receives  her  papers.  The  difficulties  frequently  en- 
countered in  the  way  of  securing  the  certificate  of  the  builder  himself 
have  led  to  the  adoption  of  a  regulation  permitting  other  competent 
evidence  establishing  the  same  facts,  subject  to  the  approval  of  the 
Commissioner  of  Navigation, 

2.  Surveyor's  Certificate  of  Measurement. — The  measurement  of 
the  boat  contained  in  the  Carpenter's  Certificate  not  having  been  made 


NAVIGATION  LAWS  233 

by  a  government  officer,  is  not  an  official  measurement.  It  is  there- 
fore specifically  required  that  there  shall  be  produced  a  certificate  of 
such  an  official  measurement  made,  prior  to  every  registry,  by  the 
Surveyor  of  Customs  or  by  some  person  appointed  by  him,  at  the 
port  where  the  vessel  is,  or  if  there  be  no  such  officer,  by  some  one  ap- 
pointed by  the  Collector.  The  Surveyor  is  the  "  outside  man "  in 
the  Custom  House  administration,  the  official  who  superintends  and 
directs  the  inspectors  and  weighers,  who  visits  all  vessels  as  they 
arrive  in  port  each  day,  and  who  incidentally  is  charged  with  this 
particular  duty  of  measuring  vessels  for  register.  His  certificate 
of  measurement  is  required  to  show  not  only  the  measurement  of  the 
vessel,  i.  e.,  length,  breadth,  depth,  etc.,  but  her  build,  her  tonnage, 
number  of  decks  and  masts.  It  is  also  required  to  state  that  the  ves- 
sel's name  and  the  place  to  which  she  belongs  are  painted  on  her 
stern.  Once  measured,  it  is  not  necessary  that  the  vessel  shall  be 
measured  again  upon  each  successive  register.  Like  all  the  other 
documents  incident  to  the  registration  of  the  vessel,  the  form  of  this 
document  is  provided  by  the  government  and  must  be  countersigned 
by  an  owner,  or  by  the  master,  or  by  the  owner's  agent. 

J.  Securing  and  Marking  of  Official  Number. — The  Secretary  of 
Commerce  has  been  authorized  to  provide  a  system  of  numbering 
all  documented  vessels.  An  application  for  such  number  must  be 
made  through  the  Collector  of  Customs  by  the  master  or  owner. 
Each  vessel  so  numbered  must  have  her  number  "  deeply  carved  or 
otherwise  permanently  marked  on  her  mainbeam,"  preceded  by  the 
abbreviation  "  No." 

Prior  to  1866  the  penalty  for  the  violation  of  this  requirement  was 
the  severe  one  of  forfeiting  her  status  as  a  vessel  of  the  United 
States.  To-day  the  penalty  is  a  fine  of  $30  upon  every  arrival  of  the 
vessel  in  a  port. 

4.  Marking  of  Official  Tonnage. —  The  law  also  requires  that  the 
net  tonnage  of  a  vessel  shall  be  deeply  carved  or  otherwise  perma- 
nently marked  on  her  mainbeam.  This  tonnage  —  representing  the 
entire  cubic  contents  of  the  interior  of  the  vessel,  excluding  the 
spaces  occupied  by  the  crew  and  the  propelling  machinery,  and  known 
as  the  "  registry  tonnage  "  or  "  register  tonnage  " —  is  defined  by  elab- 
orate provisions  of  a  law  passed  in  1864,  which  has  been  several 
times  amended.  It  is  fixed  in  the  first  instance  by  the  surveyor  or 
other  officer  measuring  the  boat. 

5.  Marking  of  Name  and  Home  Port. —  The  law  requires  that  the 
name  of  the  vessel  shall  be  marked  upon  each  bow  and  upon  the 
stern,  and  that  the  home  port  shall  also  be  marked  upon  the  stern. 
These  names  may  be  painted  or  gilded,  or  they  may  consist  of  cast 
or  carved  Roman  letters  in  a  dark  color  on  a  light  ground,  or  in  a 
light  color  on  a  dark  ground,  secure  in  place,  distinctly  visible,  and 
not  less  in  size  than  four  inches.  Originally  the  names  of  vessels 
were  required  to  be  in  white  on  a  black  ground.  In  1875  yellow  and 
gilt  letters  were  permitted.     The  rule  as  we  now  have  it  dates  from 


234  APPENDICES 

1891.  The  penalty  for  violation  of  this  law  is  $10  for  each  name 
which  is  omitted. 

In  addition  to  this,  every  steam  vessel  of  the  United  States  is 
required  to  have  her  name  conspicuously  placed  in  distinct,  plain  let- 
ters not  less  than  six  inches  high,  on  each  outer  side  of  the  pilot 
house,  and  in  case  the  vessel  is  a  side-wheeler,  then  also  upon  the 
outer  side  of  each  wheel-house.  "  Double-enders "  may  place  the 
names  on  the  parts  corresponding  to  the  bow  and  stern ;  and  on 
vessels  whose  sterns  do  not  allow  sufficient  space  for  lettering,  the 
letters  may  be  placed  on  adjacent  parts  so  as  to  conform  as  closely  as 
possible  to  the  requirements,  and  provided  always  that  the  home  port 
shall  be  marked  at  one  end  of  the  vessel. 

Scows,  barges  and  other  vessels  with  square  bows  may  be  marked 
on  the  bow  instead  of  the  side,  where  such  marking  would  be  speed- 
ily worn  out  by  chafing  against  other  vessels. 

The  "  home  port  "  as  required  to  be  marked  on  the  stem  of  the 
vessel,  may  mean  either  the  port  where  the  vessel  is  documented,  or 
the  place  in  the  same  district  where  the  vessel  was  built,  or  where 
one  or  more  of  the  owners  reside.  From  this  it  follows  that  the 
home  port  need  not  be  the  port  of  documentation,  for,  as  already 
noted,  the  law  is  that  the  vessel  must  be  registered  in  the  district 
which  includes  the  port  to  which  the  vessel  at  that  time  belongs, 
such  port  being  defined  by  law  as  that  at  or  nearest  to  which  the 
owner,  or  if  there  be  more  than  one,  the  managing  owner  of  the 
vessel,  usually  resides. 

Questions  as  to  what  is  a  vessel's  "  home  port  "  frequently  arise  in 
connection  with  contracts  for  repairs  and  supplies  and  liens  arising 
from  the  same.  As  will  be  seen  the  port  of  registry  and  the  home 
port  may  often  be  quite  different  places. 

6.  Evidence  that  Number,  Tonnage,  Name  and  Home  Port  are 
Properly  Marked. —  The  Surveyor's  Certificate  under  the  form  now 
in  use  should  have  covered  all  of  these  various  points.  However,  if 
for  any  reason  they  have  not  been  so  covered,  as  for  instance,  if  the 
vessel  is  out  of  the  district  in  which  she  is  being  documented,  the  law 
requires  that  evidence  be  produced  by  the  owner  that  all  these  re- 
quirements have  been  complied  with.  Thus,  if  the  vessel  is  else- 
where, the  owner  may  make  an  affidavit  that  the  necessary  has  been 
done,  but  as  soon  as  the  vessel  arrives  within  the  vessel's  home  dis- 
trict, where  the  inspection  certificate  of  a  customs  officer  can  be  se- 
cured, such  a  certificate  must  be  produced. 

7.  Owner's  Oath. —  Before  a  vessel  can  be  documented,  the  owner, 
or  an  officer  or  agent  of  the  owner,  whether  individual  or  corporate, 
must  make  an  affidavit  disclosing  the  general  facts  as  to  the  owner- 
ship of  the  boat,  giving  the  names  of  its  various  owners,  their  pro- 
portions of  ownership,  and  the  citizenship  of  each  of  them,  etc.  It 
must  also  include  a  statement  as  to  the  name  and  tonnage  of  the  ves- 
sel, and  the  place  and  nature  of  her  construction.    This  oath  is  an 


NAVIGATION  LAWS  235 

absolute  requirement,  and  if  the  vessel  is  documented  without  it,  the 
document  is  void,  and  the  vessel  is  not  entitled  to  be  considered  a 
vessel  of  the  United  States. 

It  is  also  required  that  the  owner's  affidavit  shall  name  the  master 
of  the  vessel  together  with  a  statement  that  the  master  is  a  citizen, 
with  a  note  of  the  means  whereby  he  acquired  his  citizenship.  The 
person  thus  named  by  the  owner  is  thereby  deemed  her  master  for 
all  legal  purposes,  regardless  of  the  question  of  his  competency,  or 
as  to  who  actually  commands  the  vessel,  but  no  name  of  a  master 
who  has  not  the  necessary  license  to  command  a  vessel  of  the  class 
in  question  will  be  accepted  by  the  Collector.  Thus,  while  in  the 
case  of  a  barge  any  citizen  may  be  named  as  the  master,  or  one  citi- 
zen may  be  named  as  master  for  any  number  of  barges,  in  case  of 
a  tug  or  larger  vessel  requiring  a  licensed  master,  the  person  named 
as  master  must  be  licensed  and  qualified  to  perform  this  duty. 
This,  however,  is  entirely  irrespective  of  whether  he  has  in  fact  as- 
sumed or  does  in  fact  assume  actual  command  over  the  vessel.  For 
such  purposes  the  command  may  be  a  nominal  one. 

The  importance  of  this  document  is  illustrated  by  the  fact  that  the 
penalty  for  a  statement  knowingly  false  is  a  forfeiture  of  the  vessel, 
or  of  its  value,  to  be  recovered  from  the  person  by  whom  the  oath 
was  made. 

8.  Master's  Oath. —  In  addition  to  the  oath  of  the  owner  as  to  the 
name  and  qualification  of  the  master,  it  is  specifically  required  that 
if  the  master  is  within  the  district  where  the  registry  is  made  at  the 
time  of  application  for  it,  an  oath  must  be  taken  by  him,  instead  of 
by  the  owner,  covering  his  citizenship.  In  the  case  of  a  false  oath 
by  the  master  the  vessel  is  not  forfeited,  but  the  master  is  liable  to  a 
penalty  of  $1,000.  Every  change  of  master  must  be  reported  at  the 
first  port  and  indorsed  on  the  document. 

p.  Special  Oath  by  a  Corporation. —  Under  recent  legislation  a 
special  oath  is  required  in  the  case  of  corporations,  covering  any 
question  of  a  possible  foreign  interest  in  the  corporation.  This  oath 
must  set  forth  "  that  the  controlling  interest  in  the  said  company 
free  from  any  alien  trust  or  fiduciary  obligation,  or  any  understand- 
ing that  it  may  be  exercised  directly  or  indirectly  on  behalf  of  any 
alien,  is  owned  by  citizens  of  the  United  States,  and  that  the  Presi- 
dent and  Managing  Directors  are  citizens  of  the  United  States  and 
that  the  corporation  is  organized  under  the  laws  of  some  particular 
State. 

70.  Evidence  of  Outstanding  Certificate  of  Inspection. —  It  is  spe- 
cifically forbidden  to  issue  a  ship's  document  on  any  vessel  subject 
to  the  inspection  laws  until  a  copy  of  the  certificate  of  inspection  as 
issued  by  the  Local  Inspectors,  has  been  filed  with  the  Collector  of 
Customs.  If  the  original  certificate  is  not  available,  a  certified  copy 
can  always  be  secured  from  the  office  of  the  proper  Collector  of 
Customs. 


236  APPENDICES 

Bill  of  Sale  Not  Required  on  Original  Documentation —  The  fore- 
going completes  the  steps  or  documents  necessary  for  the  original 
registration  of  a  vessel. 

It  will  be  observed  that  no  reference  has  been  made  to  a  bill  of 
sale.  This  is  because  no  such  bill  is  required  by  law  to  be  produced 
at  the  first  registration.  In  fact  the  only  bill  of  sale  recognized  by 
statute  is  a  bill  which  itself  contains  a  copy  of  the  ship's  document, 
and  therefore  such  a  bill  could  not  be  produced  before  the  registra- 
tion had  actually  taken  place.  All  that  is  required  in  the  first  instance, 
therefore,  is  the  Carpenter's  Certificate  with  the  affidavits  as  to  own- 
ership, etc.  These  documents  are  taken  as  establishing  the  owner- 
ship, and  laying  the  foundation  for  registry  in  a  particular  name. 
However,  the  bill  of  sale  may  be  actually  in  existence,  having  been 
given  either  by  the  builder  himself  or  by  some  one  who  had  subse- 
quently acquired  title  to  the  vessel  before  her  documentation.  In 
such  case  the  bill  of  sale  should  be  produced  to  complete  the  chain  of 
title,  and  will  be  retained  at  the  Custom  House  with  the  Carpenter's 
Certificate  as  a  link  in  the  chain.  But  it  will  not  be  recorded,  for  the 
law  makes  no  provision  for  the  recording  of  bills  of  sale  except  in 
the  sense  of  transfers  of  documented  vessels,  as  hereafter  referred  to. 

Surrender  and  Reissue  of  Documents. —  The  foregoing  summarizes 
the  steps  to  be  followed  in  the  case  of  an  original  registration.  But 
on  every  change  in  the  status  of  the  vessel  a  new  registry  must  be 
secured,  and  the  vessel  must  be  documented  anew.  This  is  the  case 
where  a  vessel  is  sold  in  whole  or  in  part  to  a  citizen  of  the  United 
States,  or  where  it  is  altered  in  whole  or  in  part,  by  being  rebuilt  or 
lengthened  or  built  upon,  or  is  changed  from  one  classification  or 
denomination  to  another,  by  alteration  in  its  mode  or  method  of  rig- 
ging or  fitting.  It  also  applies  to  the  case  of  a  change  of  name  as 
hereafter  referred  to,  and,  in  case  of  corporations,  to  the  death  of  the 
officer  in  whose  name  vessel  is  documented. 

It  should  be  borne  in  mind  that  the  penalty  for  failure  to  effect 
such  a  new  registration  is  the  severe  one  that  the  vessel  shall  cease 
to  be  considered  a  vessel  of  the  United  States.  No  time  limit  for  the 
accruing  of  this  penalty,  however,  has  been  fixed  by  law. 

In  case  of  such  new  registration  the  process  is  the  same  as  above 
outlined,  but  omitting  the  earlier  steps  relative  to  the  measurement 
and  marking  of  vessel,  official  number,  etc.,  all  of  which  are  certified 
to  by  the  previous  document. 

In  the  case  of  the  sale  of  the  vessel,  it  is  of  course  the  bill  of  sale 
that  furnishes  the  foundation  for  the  transaction,  which  must  be  ac- 
companied by  the  owner's  and  master's  oaths  as  already  outlined. 

The  bill  of  sale,  as  the  all-important  and  indispensable  document, 
must  be  made  to  comply  strictly  with  the  requirements  covering  reg- 
istry, the  most  important  of  which  is  that  it  will  recite  at  length 
the  last  previous  certificate  issued  to  the  vessel.  This  proviso  is  of 
great  importance  in  England.  The  inaccurate  recital  of  such  a  cer- 
tificate voids  the  sale  entirely.     In  the  United  States  the  penalty  is 


NAVIGATION  LAWS  237 

not  so  severe,  but  still  severe  enough,  as  the  ship  is  deprived  of  her 
American  character. 

The  bill  of  sale  when  produced  is  recorded  in  the  office  of  the 
Collector  of  Customs  in  accordance  with  the  law  hereinafter  referred 
to,  and  is  returned  to  the  owner  producing  it,  as  in  the  case  of  any 
other  bill  of  sale  which  the  owner  may  desire  to  have  recorded. 

It  frequently  happens  that  it  becomes  necessary  to  secure  new  doc- 
uments for  a  vessel  which  is  distant  from  the  port  where  her  new 
owners  reside,  and  where  it  is  desired  that  she  shall  be  documented. 
In  such  case  it  is  often  impractical  at  the  time  to  secure  the  outstand- 
ing papers  for  surrender.  The  practice  is  to  secure  certified  copies 
of  the  same  either  from  the  office  of  the  Collector  where  they  were 
issued  or  from  the  office  of  the  Commissioner  of  Navigation  at  Wash- 
ington, giving  the  necessary  oath  for  the  production  of  the  original 
documents  when  they  come  to  hand. 

It  also  frequently  happens  that  the  certified  copies,  or  indeed  some- 
times the  original  documents  themselves,  do  not  bear  upon  their  face, 
as  they  should,  a  notation  as  to  the  date  of  expiration  of  the  certifi- 
cate of  inspection  of  the  vessel.  In  this  case  some  evidence  of  an 
outstanding  inspection  must  be  produced  to  the  Collector.  The 
simplest  plan  is  to  secure,  by  wire  if  necessary,  a  statement  from 
the  appropriate  Collector  of  Customs  that  such  an  inspection  is  out- 
standing. 

The  law  is  very  strict  on  the  surrender  of  the  old  documents  upon 
the  issuing  of  new  ones,  as  also  in  those  cases  where  a  ship  loses  her 
right  to  continue  as  a  vessel  of  the  United  States.  The  old  law, 
passed  in  1792,  provided  for  the  giving  of  a  bond  by  the  ship's  hus- 
band or  the  acting  or  managing  owner,  varying  in  amount  according 
to  the  tonnage  of  the  boat  from  $400  to  $2,000,  guaranteeing  that 
the  registry  should  be  used  only  for  the  vessel  for  which  it  was 
granted,  and  should  not  be  sold,  lent  or  otherwise  disposed  of,  and 
that  in  case  the  vessel  were  lost  or  taken  by  an  enemy  or  otherwise  pre- 
vented from  returning  to  the  port,  the  certificate,  if  preserved,  should 
be  delivered  up  within  eight  days  of  her  return  to  port,  etc.  The 
present  law  substitutes  for  this  bond  a  penalty  of  $500  and  declares 
the  Certificate  of  Registry  to  be  void  after  a  violation  of  any  of  the 
requirements  as  to  its  surrender. 

It  frequently  happens  that  a  document  is  lost  or  wrongfully  with- 
held from  the  possession  of  the  owner.  In  this  case,  upon  the  oath 
of  the  master  or  other  person  having  charge  of  the  vessel,  a  new  doc- 
ument may  be  issued  either  temporary  in  form,  if  the  vessel  is  out 
of  her  own  port,  or  permanent,  if  she  is  in  her  own  port. 

II.    Recording  of  Bills  of  Sale 

The  present  law  on  the  subject  of  recording  bills  of  sale  is  included 
in  the  general  mortgage  provisions  of  the  new  Merchant  Marine  Act, 
under  which  it  is  provided  that  no  sale  of  a  vessel  shall  be  valid 


238  APPENDICES 

against  a  ship  unless  the  bill  of  sale  is  recorded  by  the  Collector  of 
Customs  in  an  official  register,  which  is  required  to  show 
(i)  The  name  of  the  vessel; 

(2)  The  names  of  the  parties  to  the  sale; 

(3)  The  time  and  date  of  receiving  the  bill  of  sale;  and 

(4)  The  interest  in  the  vessel  so  sold. 

It  is  also  provided  that  no  bill  of  sale  can  be  recorded  unless  the  in- 
terest of  the  grantor  in  the  vessel  is  stated,  also  the  interest  sold,  nor 
unless  the  bill  has  been  acknowledged  before  a  notary  public  or  other 
officer  authorized  to  take  acknowledgements.  In  the  case  of  a 
change  in  the  port  of  documentation,  no  bill  of  sale  may  be  recorded 
at  the  new  port  unless  a  certified  copy  of  the  record  of  the  vessel  at 
the  former  port  is  furnished  by  the  collector  of  that  port. 

III.     Preferred  Mortgages  Under  Merchant  Marine  Act 

The  law  in  regard  to  ship  mortgages  is  highly  technical  and  refer- 
ence only  will  be  made  here  to  the  general  provisions  of  the  Merchant 
Marine  Act  which  makes  far-reaching  changes  in  the  existing  sys- 
tem in  an  effort  to  give  added  value  to  mortgage  security  on  a  ship,  a 
form  of  security  which  heretofore  has  been  of  very  limited  value 
on  account  of  the  subordination  of  the  mortgage,  which  is  not  a  mari- 
time contract,  to  all  maritime  liens,  whether  arising  out  of  contract  or 
tort. 

The  present  law  gives  to  a  duly  recorded  preferred  mortgage 
priority  except  as  to  (i)  liens  arising  prior  to  the  recording  of  a 
mortgage  in  strict  conformity  to  the  provisions  of  the  act;  (2)  liens 
for  damages  arising  out  of  tort;  (3)  liens  for  wages  of  stevedores 
when  employed  directly  by  the  owner,  operator,  master,  ship's  hus- 
band or  agent  of  the  vessel;  (4)  liens  for  wages  of  the  crew  of  the 
vessel;  (5)  liens  for  general  average;  (6)  liens  for  salvage,  includ- 
ing contract  salvage;  and  (7)  court  costs  and  expenses. 

If  a  mortgage  covers  a  ship  of  over  200  gross  tons  the  material 
facts  regarding  it  must  be  endorsed  on  the  ship's  papers.  There  must 
also  be  filed  an  affidavit  that  the  mortgage  was  made  in  good  faith, 
without  the  intent  to  delay  or  defraud.  It  must  appear  that  the 
mortgagee  is  a  citizen  of  the  United  States  and  that  the  mortgage 
does  not  stipulate  that  the  mortgagee  waives  its  preferred  status.  If 
the  mortgage  includes  property  other  than  a  vessel  it  must  provide 
for  the  separate  discharge  of  such  property  by  the  payment  of  a 
specified  amount,  and  if  it  includes  more  than  one  vessel  it  must 
similarly  provide  for  the  separate  discharge  of  each  vessel  on  the 
payment  of  a  specified  amount,  in  default  of  which,  the  court,  in  a 
suit  on  the  mortgage,  is  to  determine  the  proportionate  charge. 

Two  certified  copies  of  every  preferred  mortgage  are  to  be  deliv- 
ered by  the  collector  to  the  mortgagor,  who  is  required  to  use  due 
diligence  to  retain  one  copy  on  board  the  vessel,  and  to  cause  it  and 
the  ship's  documents  to  be  exhibited  by  the  master  to  any  person 


NAVIGATION  LAWS  239 

having  business  with  the  vessel  which  may  give  rise  to  a  maritime 
lien  or  to  the  sale  of  the  vessel.  Upon  request,  the  master  is  re- 
quired to  exhibit  to  such  person  the  ship's  documents  and  this  copy 
of  the  mortgage.  Upon  request  of  the  mortgagee,  the  mortgagor 
is  required  to  disclose  in  writing,  before  the  execution  of  any  pre- 
ferred mortgage,  the  existence  of  any  maritime  lien  prior  to  the 
mortgage,  that  is  known  to  the  mortgagor,  and,  without  the  consent 
of  the  mortgagee,  the  mortgagor  is  forbidden,  after  the  execution 
of  the  mortgage  and  before  the  mortgagee  has  had  reasonable  time 
to  record  the  mortgage  and  have  the  necessary  endorsements  made, 
to  incur  any  obligations  creating  liens  on  the  vessel  other  than  those 
for  wages,  for  general  average  or  for  salvage. 

The  law  permits  the  preferred  mortgage  to  bear  any  rate  of  inter- 
est agreed  to  by  the  parties.  It  provides  severe  penalties  upon  the 
master  for  failing  to  exhibit  the  ship's  documents  or  the  copy  of  the 
mortgage,  when  demanded,  and  permits  local  inspectors  to  suspend 
or  cancel  the  master's  license  for  any  such  violation.  As  to  the  mort- 
gagor who  fails  to  make  disclosure  of  liens  already  referred  to,  or 
who  incurs  new  liens  with  attempt  to  defraud,  the  law  provides  a 
maximum  fine  of  $1,000  and  imprisonment  for  two  years,  and  makes 
the  mortgage  then  immediately  payable.  It  also  subjects  the  col- 
lectors of  customs  and  the  mortgagor  to  personal  liability  for  loss 
occasioned  by  their  failure  to  perform  their  duties  under  the  act  and 
opens  the  federal  courts  to  such  suits. 

Under  the  same  act  jurisdiction  of  all  suits  to  foreclose  a  preferred 
mortgage  is  vested  exclusively  in  the  District  Courts  of  the  United 
States.  Authority  is  also  given  to  bring  suit  in  personam  in  the 
admiralty,  in  the  United  States  District  Courts,  against  the  mort- 
gagor. 

The  surrender  of  the  documents  of  mortgaged  vessels  without  the 
approval  of  the  Shipping  Board  is  prohibited,  and  the  Board  is  di- 
rected to  withhold  such  approval  unless  the  mortgagee  consents  to 
the  surrender.  By  resolution  of  the  Board  this  law  is  interpreted 
as  not  applying  to  cases  in  which  owners  merely  renew  licenses  or 
change  documents  incident  to  change  of  trade  and  where  the  owner- 
ship remains  the  same. 

Elaborate  provisions  are  also  to  be  found  covering  the  formal  pro- 
cedure in  case  of  sales  of  mortgaged  vessels,  together  with  a  provi- 
sion that  no  rights  under  a  mortgage  shall  be  assigned  to  any  person 
not  a  citizen  of  the  United  States  without  the  approval  of  the  Board, 
and  that  no  vessel  shall  be  sold  in  a  suit  in  the  admiralty  to  any  per- 
son who  is  not  a  citizen. 

The  legality  of  the  provisions  conferring  upon  the  federal  courts 
the  right  to  enforce  mortgage  liens  which  are  of  a  nonmaritime 
character,  is  much  debated  and  must  await  final  decision  by  the  Su- 
preme Court.  If  the  court  should  decide  against  the  legality  of  these 
provisions  serious  and  difficult  questions  will  be  presented  as  to 
whether  the  act  as  it  now  stands  will  be  effective  to  give  preferred 


240  APPENDICES 

status  to  such  a  mortgage,  under  the  radically  different  procedure 
which  must  then  be  resorted  to. 

Tiie  act  also  revises  the  law  on  the  subject  of  the  creation  of  mar- 
itime liens  for  necessaries.  It  provides  that  persons  furnishing  re- 
pairs, supplies,  towage,  etc.,  on  order  of  the  owner  or  an  authorized 
agent  shall  have  a  maritime  lien  on  the  vessel  without  being  required 
to  prove  the  credit  was  given  to  the  vessel;  defines  the  persons  who 
are  to  be  presumed  to  have  authority  from  the  owner  to  procure  re- 
pairs, etc.,  including  the  agents  of  a  charterer;  and  permits  the 
waiving  of  such  liens  by  those  furnishing  the  supplies  or  services, 
subject  to  certain  existing  specified  rules  of  law. 

IV.     Change  of  Name 

The  American  law  has  always  been  very  strict  in  regard  to  chang- 
ing the  names  of  vessels.  Such  change  can  only  be  made  by  the 
Commissioner  of  Navigation,  and  if  made  by  the  master  or  owner  or 
agent  of  the  vessel  subjects  the  vessel  to  forfeiture.  Since  1881  the 
Secretary  of  the  Treasury,  and  later,  the  Commissioner  of  Navigation, 
has  been  authorized  to  permit  the  change  of  names  of  vessels  "  duly 
enrolled  and  found  seaworthy  and  free  from  debt."  Under  this  law 
it  became  necessary  to  secure  a  special  act  of  Congress,  which  was 
frequently  done,  to  change  the  name  of  a  mortgaged  vessel.  To 
cure  this  defect  the  law  of  February  19,  1920,  which  took  effect  thirty 
days  after  its  passage,  provides  for  a  change  of  name  by  the  Com- 
missioner of  Navigation  upon  compliance  with  regulations  issued  by 
him. 

All  that  is  required  in  the  first  instance  is  a  duplicate  application 
by  the  owner,  addressed  to  the  Commissioner  of  Navigation  and  for- 
warded to  him  through  the  Collector  of  Customs  at  the  home  port  of 
the  vessel,  which  is  required  to  state  the  change  desired,  the  reasons 
in  support  of  it,  place  of  build,  official  number,  rig,  gross  tonnage, 
and  the  owner's  name.  It  must  also  include  a  detailed  list  of  liens 
of  record  from  all  custom  houses  where  the  vessel  has  been  prev- 
iously documented,  together  with  the  consent  in  writing  of  the 
mortgagee  or  other  beneficiary  under  each  lien  to  the  change  desired- 
To  this  the  Collector  of  Customs,  forwarding  the  application,  must 
add  his  certificate  as  to  liens  on  record  in  his  office,  and  must  also 
state  the  date  and  place  of  last  inspection,  a  requirement  which  pre- 
supposes the  presentation  to  him  of  satisfactory  evidence  of  the  ves- 
sel's inspection,  that  is,  either  the  original  certificate,  or  a  certified 
copy  of  it,  or  a  statement  from  the  office  of  the  Commissioner  of 
Navigation  at  Washington  that  such  a  certificate  is  outstanding.  In 
the  case  of  vessels  not  usually  inspected,  as,  for  instance,  barges,  in- 
spectors are  authorized  to  make  special  examinations  at  the  owner's 
expense  and  to  furnish  a  certificate  of  the  seaworthiness  of  the 
vessel,  the  object  of  course  being  to  prevent  old  and  unseaworthy 
vessels  from  concealing  their  condition  and  antiquity  by  a  change 
of  name. 


NAVIGATION  LAWS  241 

After  the  application  has  been  passed  by  the  Commissioner  and 
permission  has  been  granted,  it  is  required  that  the  change  shall  be 
published  in  a  daily  or  weekly  paper  nearest  to  the  port  of  documenta- 
tion in  at  least  four  consecutive  issues,  the  cost  of  procuring  the  evi- 
dence and  of  publication  to  be  paid  by  the  applicant.  The  permis- 
sion for  change  is  not  effective  until  this  fee  is  paid.  Upon  its  pay- 
ment the  issuance  of  a  new  document  is  then  required,  which  pre- 
supposes the  production,  as  in  other  cases,  of  the  owner's  affidavit, 
and  of  the  master's  affidavit,  as  already  explained. 

The  Collector  thereupon  records  the  change  of  name  in  his  pre- 
scribed reports  and  the  transaction  is  completed. 

Vessels  formerly  documented  and  which  have  been  sold  to  the 
United  States  and  resold  to  citizens,  must  be  documented  under  the 
old  name  and  official  number,  but  vessels  never  before  documented 
and  sold  by  the  United  States  to  citizens,  may  be  redocumented  under 
any  name  selected  that  is  approved  by  the  commissioner. 

In  forwarding  the  application  for  change  of  name  the  Collector  of 
Customs  is  required  to  submit  his  recommendations  giving  any  rea- 
sons for  or  against  the  change.  The  usual  reasons  in  support  of  a 
change  are  a  desire  on  the  part  of  the  company  to  carry  out  some  es- 
tablished policy  in  the  naming  of  its  vessels,  or  a  desire  to  shorten 
or  lengthen  a  name,  as  the  case  may  be. 

The  fee  required  is  prescribed  by  law  upon  a  sliding  scale  from 
$ro  to  $100,  according  to  gross  tonnage,  the  former  figure  being 
for  vessels  of  99  gross  tons  and  under,  and  the  latter  for  vessels  of 
5,000  gross  tons  and  over. 

V.     Entry  and  Clearance 

Whether  or  not  a  vessel  is  required  to  enter  and  clear  depends, 
first,  upon  whether  she  is  registered,  and  second,  upon  her  tonnage 
and  the  service  in  which  she  is  engaged. 

All  vessels  under  registry  (as  distinguished  from  vessels  enrolled 
or  licensed)  are  required  to  enter  and  clear  at  every  port,  except 
when  bound  from  a  point  in  one  state  to  that  of  an  adjoining  state. 

If  not  registered  the  question  depends  in  the  first  instance  upon 
the  size  of  the  vessel.  The  law,  as  inherited  from  the  early  days, 
when  smuggling  was  frequent  in  small  vessels,  and  it  was  considered 
important  to  keep  them  under  close  supervision,  makes  a  distinction 
between  vessels  under  twenty  tons  and  those  above  that  tonnage. 

If  under  20  tons  (and  properly  documented,  that  is  licensed)  and 
laden  wholly  with  American  goods,  or  with  foreign  goods  in  pack- 
ages as  imported  not  exceeding  $400  in  value,  or  of  aggregate  value 
not  over  $800,  they  may  trade  from  a  customs  district  in  one  state 
to  a  customs  district  in  the  same  or  an  adjoining  state,  without  en- 
tering or  clearing.  But  if  over  twenty  tons,  such  vessels  are  permit- 
ted to  trade,  without  entering  or  clearing,  from  one  customs  district 
in  the  same  Great  District  to  another  in  the  same  Great  District,  or 


242  APPENDICES 

from  a  State  in  one  Great  District  to  an  adjoining  State  in  another 
Great  District:  Except  as  thus  provided  all  vessels  engaged  in  the 
coasting  trade  must  enter  and  clear  on  their  arrival  at,  or  departure 
from,  each  port. 

The  five  Great  Districts  referred  to  have  been  defined  as  follows 
and  should  not  be  confused  with  the  customs  collection  districts : — 

1.  Atlantic  coast  from  Canada  to  Mexico. 

2.  Porto  Rico. 

3.  Pacific  Coast. 

4.  Alaska. 

5.  Hawaii. 

It  is  worth  noting,  however,  that  enrolled  vessels  which  are  not 
required  to  enter  and  clear  may  do  so,  if  they  desire  for  any  pur- 
pose to  have  a  record  of  their  entrance  and  their  clearance.  This 
might  occur  in  the  case  of  a  vessel  intending  to  undergo  extensive 
repairs  and  which  might  desire  such  a  record  to  secure  a  rebate  of 
insurance  premium. 

In  the  case  of  vessels  in  the  foreign  trade  or  coming  from  one 
Great  District  into  another,  and  which  are  required  to  be  registered, 
the  law  requires  the  surrender  and  filing  of  manifests,  bill  of 
health  and  crew  list.  When  these  formalities  have  been  complied 
with,  the  vessel  is  posted  in  the  Custom  House  as  entered.  The 
manifest  is  produced  to  the  boarding  officer  and  includes  the  original 
manifest  issued  at  the  foreign  port  as  well  as  a  certified  copy.  The 
crew  list  is  the  list  issued  by  the  Collector  of  the  last  port  of  clear- 
ance from  the  United  States,  the  Collector  having  retained  the  orig- 
inal sworn  to  by  the  master,  and  having  furnished  the  master  with 
a  certified  copy.  Bills  of  health  should  have  been  secured  from  the 
American  consular  office  at  the  last  port  of  touch,  but  bills  are  not 
required  from  ports  where  there  is  no  such  officer.  The  ship's  reg- 
ister is  deposited  in  the  Custom  House  and  obtained  before  clearance. 

In  the  case  of  the  clearance  of  a  vessel  in  the  coastwise  trade,  and 
which  is  under  registry,  or  which  for  any  other  reason  desires  a  clear- 
ance, the  master  is  required  to  produce  a  coasting  manifest  to  the  Col- 
lector. Upon  making  affidavit  to  this  document  the  necessary  coast- 
wise clearance  and  permit  is  issued.  If,  however,  as  in  the  case  of 
tugs,  there  is  no  cargo  to  be  manifested,  a  coastwise  permit  is  issued 
upon  affidavit  by  the  master  that  the  vessel  contains  no  cargo  whatever 
other  than  sea  stores. 

In  the  case  of  vessels  bound  to  foreign  ports  the  documents  take 
the  form  of  the  customary  foreign  manifest,  which  is  followed  by 
the  official  clearance  in  the  form  familiar  to  the  export  trade  for 
a  hundred  years. 

VI.     Shipping  Articles 

Shipping  articles  are  required  in  both  the  foreign  and  in  the  coast- 
wise trade,  but  with  certain  important  differences. 


NAVIGATION  LAWS  243 

In  the  foreign  trade  the  articles,  which  must  be  in  government 
form,  are  required  to  be  signed  before  a  Shipping  Commissioner. 
This,  however,  does  not  apply  to  trade  between  the  United  States 
and  the  British  North  American  possessions  and  the  West  Indies, 
and  Mexico.  The  nature  of  these  articles  is  sufficiently  familiar  to 
require  no  comment.  Generally  speaking  the  articles  must  contain 
the  following  particulars: — 

1.  The  nature  and,  as  far  as  practicable,  the  duration  of  the  in- 
tended voyage  or  engagement,  and  the  port  or  country  at  which  the 
voyage  is  to  be  terminated. 

2.  The  number  and  description  of  the  crew,  specifying  their 
respective  employments, 

3.  The  time  at  which  each  seaman  is  to  be  on  board  to  begin  work. 

4.  The  capacity  in  which  each  seaman  is  to  serve. 

5.  The  amount  of  wages  which  each  seaman  is  to  receive. 

6.  A  scale  of  the  provisions  which  are  to  be  furnished  each  seaman. 

7.  Any  regulations  as  to  conduct  on  board  and  as  to  fines,  short 
allowances  of  provisions,  or  other  lawful  punishments  for  miscon- 
duct, which  may  be  sanctioned  by  Congress  or  authorized  by  the 
Secretary  of  Commerce,  not  contrary  to  or  not  otherwise  provided  for 
by  law,  which  the  parties  agree  to  adopt. 

8.  Any  stipulations  in  reference  to  allotment  of  wages  or  other 
matters  not  contrary  to  law.  In  1898  this  provision  was  repealed  so 
far  as  it  relates  to  allotments  in  trade  between  the  United  States, 
Dominion  of  Canada,  Newfoundland,  the  'West  Indies  and  Mexico, 
and  the  coasting  trade  of  the  United  States,  except  between  Atlantic 
and  Pacific  ports. 

In  the  coasting  trade  the  law  merely  requires  that  every  master 
of  a  vessel  of  fifty  tons  or  over,  bound  from  a  port  in  one  State  to  a 
port  in  any  other  than  a  port  in  an  adjoining  State  (with  the  excep- 
tion of  voyages  from  the  Atlantic  to  Pacific  ports,  which  are  in- 
cluded under  foreign  trade)  shall  make  an  agreement  in  writing  with 
his  seamen  declaring  the  voyage  or  term  of  time  for  which  the  sea- 
man is  shipped.  This  agreement  may  be  signed  before  a  Shipping 
Commissioner,  but  this  is  not  compulsory.  The  agreement  required 
in  the  coasting  trade  requires  only  the  voyage,  or  term  of  time  for 
which  the  seaman  is  shipped. 

Question  has  been  raised  as  to  whether  the  requirement  as  to  writ- 
ten articles  applies  to  cases  where  the  "  adjoining  State  "  is  reached 
by  a  waterway  running  through  other  States,  as,  for  instance,  a 
voyage  from  New  York  to  Philadelphia.  It  seems  clear,  however, 
that  the  law  should  be  strictly  interpreted,  according  to  its  terms, 
and  that  articles  would  not  be  required  on  such  a  voyage. 

In  neither  case  does  the  law  provide  a  limit  in  the  matter  of 
length  of  voyage.  In  England  shipping  articles  are  frequently  for 
long  periods  of  a  year  or  more.  Our  practice  is  more  limited. 
Clauses  for  one  or  more  continuous  voyages  are  commonly  found 


244  APPENDICES 

with  a  provision  for  the  termination  of  the  contract  by  authority  of 
the  master,  or  any  member  of  the  crew,  upon  twenty-four  hours' 
notice. 

A  provision  of  law  which  sometimes  occasions  difficulty  is  that 
which  permits  a  seaman  discharged  "  without  fault  on  his  part  jus- 
tifying such  discharge  "  and  without  his  consent,  before  the  com- 
mencement of  the  voyage  or  before  one  month's  wages  are  earned, 
to  receive  a  compensation  of  one  month's  wages.  This  question, 
like  all  other  questions  relating  to  wages,  comes  up  in  the  first  instance 
before  a  Shipping  Commissioner,  and  in  the  hands  of  a  competent 
commissioner  there  should  seldom  be  any  difficulty  in  determining 
whether  the  discharge  was  or  was  not  due  to  the  fault  of  the  seaman 
or  to  his  inability  properly  to  perform  his  duties. 

The  right  to  overtime  is  not  provided  for  by  statute,  and  before 
the  war  was  not  generally  recognized.  In  July,  1919,  however,  an 
informal  agreement  was  made  between  the  Shipping  Board  and  the 
steamship  association  and  the  unions,  under  which  this  right  to  claim 
overtime  is  recognized,  provided  it  is  covered  by  special  contract. 

VII.    Licensing  and  Qualifications  of  Officers 

The  law  requires  that  masters,  chief  mates,  second  and  third  mates, 
if  in  charge  of  a  watch,  engineers,  and  pilots  of  all  steam  vessels,  and 
the  masters  of  sailing  vessels  of  over  700  gross  tons,  and  of  other 
vessels  over  100  gross  tons  carrying  passengers  for  hire,  shall  be 
licensed  and  classified  by  the  boards  of  local  inspectors,  and  imposes 
a  penalty  of  $100  for  employing  an  unlicensed  officer  or  for  an  un- 
licensed person  to  serve  as  an  officer.  These  several  boards  of  in- 
spectors are  under  the  direction  of  a  Supervising  Inspector  General 
appointed  by  the  President,  and  who  is  at  the  head  of  a  Steamboat 
Inspection  Service,  and  are  further  under  the  supervision  of  ten  su- 
pervising inspectors,  to  each  of  whom  is  assigned  general  supervision 
of  the  work  of  inspection  in  a  particular  district.  The  law  imposes 
large  discretion  upon  the  local  inspectors  in  the  examination  and  li- 
censing of  officers,  limiting  the  licenses  to  a  period  of  five  years,  and 
giving  the  inspectors  authority  to  suspend  licenses  on  proof  of  bad  con- 
duct, intemperate  habits,  incapacity,  inattention  to  duties  or  a  willful 
violation  of  inspection  laws. 

It  is  specially  forbidden  for  any  state  or  municipal  government  to 
impose  on  pilots  any  obligation  to  secure  a  license  in  addition  to 
that  issued  by  the  Federal  government. 

One  of  the  most  important  functions  of  the  local  inspectors  is  that 
which  concerns  the  investigation  of  collisions  and  complaints  of 
incompetency  or  misconduct  committed  by  licensed  officers.  For 
this  purpose  the  inspectors  have  power  to  summon  the  witnesses, 
to  administer  oaths  and,  upon  hearing  had  after  reasonable  notice 
in  writing  to  the  alleged  delinquent,  to  suspend  or  to  revoke  his  license, 
if  satisfied  that  he  has  been  guilty  of  misbehavior,  negligence  or  un- 


NAVIGATION  LAWS  245 

skillfulness,  or  has  endangered  life.  Appeals  from  the  decision  of 
the  local  inspectors  may  be  made  to  the  supervising  inspector. 

Where,  however,  the  supervising  or  local  inspector  finds  a  licensed 
officer  on  board  a  vessel  under  the  influence  of  liquor  to  such  an  ex- 
tent as  to  unfit  him  for  duty,  or  when  a  licensed  officer  uses  abusive 
language  to  an  officer  or  insults  him  while  on  duty,  the  local  inspec- 
tor is  required  to  revoke  the  license  of  the  offending  officer  without 
further  trial  or  investigation. 

The  rules  of  the  board  classify  vessels  according  to  the  general 
character  of  their  trade,  as 

1.  Ocean  and  coastwise. 

2.  Lakes,  bays  and  sounds. 

3.  Rivers. 

Qualifications  for  the  officers  properly  vary  according  to  these 
three  classes  of  service,  to  which  is  added  a  number  of  other  special 
classifications,  as,  for  instance,  ferry  steamers  on  rivers,  passenger 
barges  on  rivers,  etc.;  or  in  the  case  of  engineers,  as,  for  instance, 
condensing  river  steamer  and  noncondensing  river  steamer.  These 
requirements  are  set  forth  in  full  detail  in  the  Regulations  of  the 
Steamboat  Inspection  Service,  with  which  all  officers  should  be  fa- 
miliar. 

Certain  minimum  requirements  in  the  case  of  deck  officers  have 
been  prescribed  by  statute,  the  latest  law  being  that  of  March  n, 
19 18,  which  with  certain  minor  exceptions,  provides  for  one  licensed 
master  for  every  vessel;  for  vessels  1,000  gross  tons  or  over,  three 
licensed  mates,  and  for  vessels  between  200  and  1,000  tons,  two  li- 
censed mates;  for  vessels  between  100  and  200  tons,  one  licensed 
mate.  The  inspectors,  however,  are  permitted  to  increase  these  re- 
quirements if  they  consider  the  vessel  not  sufficiently  manned  for 
safe  navigation. 

The  same  law  of  1918  prohibits  officers  from  assuming  deck 
watches  on  leaving  port  unless  they  have  had  at  least  six  hours  off 
duty  within  the  twelve  hours  preceding  sailing;  and  also  prohibits 
licensed  officers  on  both  ocean  and  coastwise  vessels  from  doing  duty 
exceeding  nine  hours  of  any  twenty-four  while  in  port,  or  more 
than  twelve  hours  of  any  twenty-four  while  at  sea,  except  in  case  of 
emergency  endangering  life  or  property. 

VIII.    Qualifications  of  Seamen 

Before  the  passage  of  the  Seamen's  Act  in  1915,  there  were  no 
statutory  requirements  as  to  the  ability  or  experience  of  the  crew, 
other  than  the  general  requirement  that  the  vessel  should  be  prop- 
erly manned.  This  act,  however,  presents  a  body  of  highly  strin- 
gent requirements.  Its  principal  requirements  may  be  summarized 
as  follows: 


246  APPENDICES 

Age. —  In  the  matter  of  age  the  act  provides  that  in  the  deck  de- 
partment of  all  vessels  of  more  than  lOO  tons  gross,  except  those  nav- 
igating rivers  exclusively  and  the  smaller  inland  lakes,  there  shall 
be  a  certain  proportion  of  seamen  v^^ith  the  rating  of  able  seamen, 
a  classification  which  is  limited  to  those  of  nineteen  years  of  age. 
The  lack  of  supply  of  able  seamen  has  made  it  practically  impossible 
to  enforce  this  requirement. 

Service  and  Physical  Qualification — The  act  requires  the  physical 
examination  of  able  seamen  in  the  deck  department.  It  also  divides 
able  seamen  into  two  classes,  those  engaged  in  vessels  operating  on 
the  high  seas  and  those  engaged  on  the  Great  Lakes,  smaller  lakes, 
bays  and  sounds.  For  the  former  three  years'  service  at  sea  or  on 
the  Great  Lakes,  etc.,  and  an  examination  as  to  general  physical  con- 
dition, is  required,  or  one  year's  experience  on  deck  at  sea  or  on  the 
Great  Lakes,  etc.,  together  with  an  oral  examination  on  seamanship 
and  for  the  latter  eighteen  months'  experience  at  sea  or  on  the  Lakes. 

Lifeboat  Men. —  The  Seamen's  Act,  in  connection  with  its  elaborate 
provisions  for  the  equipment  of  vessels  with  lifesaving  appliances, 
lays  down  the  distribution  of  a  specially  designated  class  of  certifi- 
cated seamen  known  as  lifeboat  men  to  the  various  lifeboats  and 
rafts  required  to  be  carried  by  a  vessel,  leaving  the  designation  of 
the  individuals  to  the  discretion  of  the  master.  To  secure  a  certifi- 
cate as  lifeboat  man,  a  seaman  is  required  to  prove  to  the  satisfac- 
tion of  the  inspection  officers,  or  other  officers  designated  for  the 
purpose  of  issuing  certificates,  that  he  has  been  trained  in  all  the  op- 
erations in  connection  with  launching  lifeboats  and  the  use  of  oars, 
is  acquainted  with  the  practical  handling  of  the  boats  themselves,  and 
is  capable  of  understanding  and  answering  the  orders  relative  to 
lifeboat  service. 

Language. — Perhaps  the  most  disputed  proviso  of  the  Seamen's 
Act  is  that  which  requires  that  not  less  than  75  per  cent,  of  the  crew 
of  the  vessel  must  be  able  to  understand  any  order  given  by  the  officer 
—  that  is,  the  necessary  orders  given  to  the  members  of  the  crew  in 
each  department  in  the  performance  of  their  particular  duties.  This 
law,  however,  does  not  require  the  use  of  any  particular  language  on 
the  part  of  officers  and  crew  of  the  vessel,  nor  does  it  require  an  Eng- 
lish-speaking crew,  nor  that  the  members  of  the  crew  in  one  department 
of  the  vessel  should  understand  orders  given  in  another  department. 

IX.     Nationality  of  Officers  and  Crew 

Officers. —  Since  1792  our  laws  have  required  that  the  officers  of  all 
vessels  of  the  United  States  who  are  in  charge  of  a  watch,  including 
pilots,  shall  be  citizens.  This  of  course  includes  tugs,  barges  and 
all  other  vessels  which  are  documented  under  our  laws.  The  term 
"  officer  "  includes  the  Chief  Engineer  and  each  Assistant  Engineef 
in  charge  of  the  watch.  The  only  exception  to  this  rule  is  that 
which  was  made  by  the  Ship  Registry  Act  of  1914,  and  the  executive 
order  based  upon   it,   under  which   foreign-built  ships  admitted  to 


NAVIGATION  LAWS  247 

American  registry  under  that  act  are  permitted  to  retain  their  watch 
oflficers,  without  regard  to  citizenship,  for  a  term  of  seven  years, 
provided  that  after  two  years  any  vacancy  must  be  filled  by  a  citi- 
zen of  the  United  States. 

Crew. — There  are  no  provisions  or  restrictions  as  to  the  national- 
ity of  the  crew  on  vessels  of  the  United  States. 

X.    Wages 

The  Seamen's  Act  requires  that  on  coasting  voyages,  wages  shall 
be  paid  to  every  seaman  within  two  days  after  the  termination  of 
the  agreement  under  which  he  shipped,  or  at  the  time  of  his  dis- 
charge if  he  should  be  discharged  before  the  expiration  of  the  agree- 
ment ;  and  that  on  foreign  voyages  wages  shall  be  paid  within  twenty- 
four  hours  after  the  discharge  of  the  cargo,  or  within  four  days  af- 
ter the  discharge  of  the  seaman,  whichever  shall  first  happen.  The 
law  further  provides  that  a  seaman  is  entitled  in  every  case  to  be 
paid  at  the  time  of  his  discharge  a  sum  equal  to  one-third  of  the 
balance  of  wages  then  due  him.  This  proviso,  however,  is  seldom 
observed  in  practice,  nor  is  it  insisted  upon,  as  it  would  in  general  be 
impracticable  for  wages  to  be  paid  at  the  moment  of  discharge. 

The  question  of  payment  of  a  certain  portion  of  wages  on  demand, 
which  is  also  covered  by  the  Seamen's  Act  and  earlier  acts,  has  re- 
ceived considerable  revision  in  the  Merchant  Marine  Act.  Under 
this  law  it  is  provided  that  every  seaman  on  a  vessel  of  the  United 
States  may  receive  on  demand  of  the  master  one-half  of  the  balance 
of  his  wages  earned  at  every  port  where  the  vessel  loads  or  delivers 
cargo.  This  protection  may  not  be  waived  by  contract,  but  is  sub- 
ject to  the  proviso  that  the  demand  shall  not  be  made  before  the  ex- 
piration of,  nor  oftener  than  once  in,  five  days,  nor  more  than  once 
in  the  same  harbor.  Failure  on  the  part  of  the  master  to  comply 
with  this  demand  releases  the  seaman  from  his  contract  and  entitles 
him  to  full  payment  of  wages  earned.  At  the  end  of  the  voyage 
the  seaman  is  entitled  to  the  remainder  of  his  wages  according  to  the 
provisions  of  the  Seamen's  Act,  which  also  provides  that  notwith- 
standing the  release,  which  is  required  to  be  signed  before  the  Ship- 
ping Commissioner  at  the  time  of  the  seaman's  discharge,  the  proper 
court  may  set  aside  the  release  upon  good  cause  shown.  The  pro- 
vision of  the  Merchant  Marine  Act  is  specially  made  applicable  to  the 
case  of  seamen  on  foreign  vessels  while  in  the  harbors  of  the  United 
States,  and  the  courts  of  the  United  States  are  opened  to  such  sea- 
men for  its  enforcement. 

Advances. —  The  law  in  regard  to  advances  to  seamen  is  also 
slightly  amended  by  the  Merchant  Marine  Act,  which  makes  it  un- 
lawful to  pay  wages  in  advance  of  the  time  when  actually  earned,  or 
to  pay  such  advance  wages  or  make  any  order  or  note  or  other 
evidence  of  indebtedness  for  the  same  to  any  other  person,  or  to 
pay  any  other  person  for  the  shipment  of  seamen  when  payment  is 


248  APPENDICES 

deducted  or  is  to  be  deducted  from  the  seaman's  wages.  Payment 
of  such  advance  wages  or  allotment  whether  made  within  or  without 
the  United  States  does  not  absolve  the  vessel  from  libel  and  is  no 
defense  to  a  libel  suit.  This  act  also  forbids  any  person  to  demand  or 
receive  from  any  seaman  any  remuneration  whatever  for  providing 
him  employment. 

Seamen  discharged  by  a  consul  in  a  foreign  port  on  account  of 
the  voyage  being  continued  contrary  to  agreement,  or  unseaworthi- 
ness of  vessel,  or  bad  provisions,  or  cruel  treatment,  are  entitled  to 
one  month's  extra  wages  and  transportation  to  the  United  States. 
Seamen  discharged  at  a  foreign  port  at  the  request  of  the  master,  and 
not  on  account  of  neglect  of  duty,  are  entitled  to  employment  on  a 
vessel  agreed  to  by  the  seaman  and  to  one  month's  extra  wages. 

Seamen  discharged  before  commencement  of  voyage  without  fault, 
are  entitled  to  one  month's  additional  wages,  and  all  seamen  are 
entitled  to  two  days'  extra  wages  for  each  day's  delay  in  payment  at 
end  of  voyage. 

The  laws  also  contain  elaborate  and  beneficial  provisions  for  the 
recovery  of  their  wages  by  seamen  through  proceedings  in  the 
courts. 

Seamen  are  disqualified  by  law  from  signing  away  their  lien  upon 
a  vessel  for  wages ;  as  also  their  rights  to  participate  in  salvage. 
It  is  to  be  noted  that  the  seaman's  right  to  a  share  in  salvage,  in  the 
case  of  the  saving  of  human  life,  on  the  part  of  a  seaman  who  has 
taken  part  in  the  services  rendered,  is  expressly  conferred  and  pro- 
tected by  statute.  Failure,  unless  unavoidable,  to  give  help  to  per- 
sons at  sea,  in  danger  of  being  lost,  is  also  made  a  serious  criminal 
offense. 

XI.    Watch  and  Watch  and  Work-Day 

Before  the  passage  of  the  Seamen's  Act  there  were  no  legal  re- 
quirements as  to  hours  of  labor  at  sea,  though  long  established  cus- 
tom had  divided  the  deck  crew  into  two  watches  and  the  engine  crew 
into  three  watches,  with  certain  variations  in  this  plan  in  special 
trades.  Under  the  Seamen's  Act  it  is  now  provided  that  on  mer- 
chant vessels  of  over  lOO  tons,  except  those  engaged  in  river  and 
harbor  navigation,  -the  sailors  must  be  divided  into  at  least  two 
watches,  and  the  firemen,  oilers  and  water  tenders  into  at  least 
three  watches,  which  are  to  be  kept  on  duty  successively  for  the 
performance  of  ordinary  work,  incident  to  the  sailing  and  manage- 
ment of  the  vessel. 

Seamen  may  not  be  shipped  to  work  alternately  in  the  fireroom 
and  on  deck,  nor  may  those  shipped  to  work  on  deck  be  shifted  to 
the  fireroom,  or  vice  versa,  subject  to  cases  of  emergency,  in  the 
judgment  of  the  master  or  other  officer.  These  provisions,  however, 
do  not  prohibit  the  master  or  other  officers  from  requiring  the  whole 
or  any  part  of  the  crew  to  participate  in   fire,   lifeboat  and   other 


NAVIGATION  LAWS  249 

drills  when  the  vessel  is  in  a  safe  harbor  nine  hours,  inclusive  of 
the  anchor  watch,  which  is  a  legal  day,  but  in  such  case  no  seaman 
may  be  required  to  do  unnecessary  work  on  Sundays  or  on  New 
Year's,  Fourth  of  July,  Labor  Day,  Thanksgiving  Day  and  Christ- 
mas, provided  -that  this  does  not  prevent  the  dispatch  of  the  vessel 
on  regular  schedule  or  when  ready  to  proceed  on  her  voyage. 

XIL     Provisions  for  Crew 

Sleeping  Quarters. —  The  Seamen's  Act  provides  that  on  all  vessels 
(except  yachts,  pilot  boats  and  vessels  of  less  than  100  tons)  whose 
construction  is  thereafter  begun,  there  shall  be  a  crew  space  of  not 
more  than  100  cubic  feet  or  not  less  than  16  square  feet  for  each 
seaman  lodged  therein ;  also  that  each  seaman  shall  have  a  separate 
berth,  and  that  not  more  than  one  berth  shall  be  placed  above  another ; 
that  the  seamen's  quarters  shall  be  properly  lighted,  drained,  heated, 
ventilated,  constructed  and  protected  and  shut  off;  and  that  crew 
space  shall  be  kept  free  from  goods  and  stores.  This  law  increased 
the  crew  quarters  from  'J2  cubic  feet  and  12  square  feet  in  the  case 
of  steamships,  and  from  100  cubic  feet  in  the  case  of  sailing  vessels. 
It  is  noted  that  the  Seamen's  Act  applies  to  all  merchant  vessels 
of  the  United  States,  in  this  respect  differing  from  the  earlier  acts 
which  applied  only  to  seagoing  vessels. 

Washing  Places —  The  Seamen's  Act  requires  that  all  merchant 
vessels  whose  construction  is  begun  after  its  passage,  having  more 
than  ten  men  on  deck,  shall  have  a  light,  clean  and  properly  ventilated 
washing  place,  at  least  one  washing  outfit  for  every  two  men  of  the 
watch,  and  a  separate  washing  place  for  the  fire-room  and  engine- 
room  men,  if  more  than  ten  in  number,  which  shall  be  large  enough 
to  accommodate  at  least  one-sixth  of  them  at  the  same  time,  and 
shall  have  hot  and  cold  water  supply  and  a  sufficient  number  of  wash 
basins,  sinks  and  shower  baths. 

Provisions  Scale. —  Since  1790  the  laws  of  the  United  States  have 
specified  a  scale  of  provisions  required  to  be  carried  upon  vessels. 
With  minor  alterations  included  in  the  Seamen's  Act,  the  present 
scale,  with  permissible  substitutions,  was  fixed  by  law  on  December 
21,  1898.  Under  this  law  seamen  have  the  option  of  accepting  the 
provisions  offered  or  of  demanding  the  legal  scale,  which  is  re- 
quired to  be  inserted  in  all  ship  articles  and  to  be  posted  in  the  galley 
and  forecastle.  The  laws  contain  provisos  for  complaints  to  be  made 
to  the  officer  in  command  of  the  vessel  or  to  the  United  States  con- 
sular officer  or  Shipping  Commissioner  or  chief  officer  of  the  cus- 
toms, who  has  authority  to  take  action  to  see  that  the  deficiency  is 
corrected,  subject  to  a  penalty  for  default. 

For  allowing  the  supply  of  provisions  to  be  reduced  below  the  legal 
scale  during  the  voyage,  except  for  unavoidable  causes,  compensa- 
tion must  be  paid  to  every  seaman  according  to  the  time  of  its  con- 
tinuance and  in  accordance  with  the  scheduled  allowances  fixed  by 
law. 


250  APPENDICES 

Hospital  Accommodations. —  In  addition  to  crew  space  already  re- 
ferred to  all  merchant  vessels  which  ordinarily  make  voyages  of 
more  than  three  days'  duration  and  carry  a  crew  of  twelve  or  more 
seamen,  are  required  to  have  a  separate  compartment  for  hospital 
purposes  with  at  least  one  bimk  for  every  twelve  seamen,  provided 
that  not  more  than  six  bunks  in  all  may  be  required. 

Warm  Room  and  Woolen  Clothing. — Every  vessel  bound  on  a  voy- 
age over  fourteen  days  in  length  must,  in  addition  to  a  slop  chest, 
provide  for  each  seaman  one  suit  of  woolen  clothing,  as  also  a  "  safe 
and  warm  room  "  for  cold  weather. 

XIII.     Personal  Injuries  to  Seamen  and  Recoveries  for  Death 

Prior  to  the  passage  of  the  recent  Merchant  Marine  Act  (1920) 
recovery  by  a  seaman  for  injuries  received  by  him  in  the  service  of 
the  ship  was  subject  to  the  maritime  law  under  which  (except  in  case 
of  the  unseaworthiness  of  the  vessel,  where  full  recovery  might  be 
claimed)  the  seaman  was  entitled  to,  but  only  to,  his  maintenance  and 
cure,  and  to  wages  so  long  at  least  as  the  voyage  continued,  regardless 
of  his  own  negligence  (unless  it  amounted  to  willful  misconduct)  or 
of  that  of  any  other  person.  Where  his  contract  extended  beyond 
the  voyage  or  there  was  fault  on  the  part  of  -the  ship,  recovery  of 
wages  was  allowable  even  beyond  -the  termination  of  the  voyage. 

This  liability  could  not  be  enlarged  or  diminished  by  any  law  of 
the  states  on  the  subject  of  employer's  liability  or  workmen's  com- 
pensation. 

The  Seamen's  Act  of  1915  undertook  to  enlarge  the  protection  of 
seamen  by  providing  that  in  suits  to  recover  damages  for  injuries  re- 
ceived on  board  a  vessel,  or  in  its  service,  seamen  "  having  command," 
e.  g.^  masters,  etc.,  should  not  be  held  to  be  fellow  servants  with  those 
under  their  authority,  but  this  was  held  not  to  affect  those  cases 
covered  by  the  general  rule  of  the  maritime  law  above  stated,  under 
which  the  fellow  servant  question  is  immaterial. 

A  more  successful  effort  at  extending  the  seaman's  right,  however, 
was  made  in  the  recent  Merchant  Marine  Act,  which  permits  any 
seaman  who  suffers  injury  in  the  course  of  his  employment,  to  main- 
tain, at  his  election,  an  action  for  damages  at  law,  with  the  right  of 
trial  by  jury,  and  in  such  case  to  have  the  benefit  of  the  United  States 
statutes  modifying  or  extending  the  rights  of  railroad  employees  in 
analogous  cases. 

The  same  act  also  covers  the  question  of  actions  for  the  death  of 
seamen,  giving  to  their  personal  representatives  the  right  to  sue  for 
damages  at  law  and  the  benefit  of  a  trial  by  jury,  and  the  similar 
benefit  of  the  laws  covering  actions  for  death  in  the  case  of  railroad 
employees. 

This  provision,  it  is  observed,  is  in  sharp  contrast,  and  perhaps  in 
some  conflict  with  the  provision  of  an  act  passed  at  the  same  session 
of  Congress,  on  March  30,  1920,  giving  a  general  right  to  maintain 


NAVIGATION  LAWS  251 

actions  for  all  deaths  occurring  on  the  high  seas  by  some  wrongful 
act  or  neglect.  This  law,  which  in  its  broad  terms  covers  also  the 
case  of  seamen,  permits  suits  to  be  brought  in  the  admiralty  courts 
and  fixes  the  recovery  at  the  amount  of  pecuniary  loss  sustained  by 
the  persons  for  whose  benefit  suit  is  brought.  It  further  provides 
that  in  such  action  the  fact  that  the  decedent  has  been  guilty  of  con- 
tributory negligence  is  not  to  be  considered  a  bar  to  recovery,  but  is 
to  be  taken  into  consideration  by  the  court  in  fixing  the  degree  of  neg- 
ligence and  in  reducing  the  recovery  accordingly. 

A  discussion  of  the  technical  questions  involved  in  the  relations  of 
these  two  acts  is  beyond  the  scope  of  this  summary. 

XIV.    Offenses  by  Seamen 

Offenses  by  seamen  are  punishable  under  the  laws  of  the  United 
States,  generally,  when  committed  on  the  high  seas,  or  on  any  wafers 
within  the  jurisdiction  of  the  admiralty  courts,  or  on  lands  under  the 
exclusive  jurisdiction  of  the  United  States.  The  list  of  crimes  covers 
those  familiar  to  the  criminal  law,  such  as  murder,  manslaughter, 
assault,  rape,  robbery,  arson,  larceny,  forgery,  receiving  stolen  prop- 
erty, etc.  Other  offenses  peculiar  to  marine  life  may  be  noted  as 
follows. 

Mutiny,  Desertion  and  Disobedience. —  Inciting  to  or  participation 
in  a  mutiny  on  a  United  States  vessel  is  punished  by  a  fine  of  not 
over  $1,000  or  imprisonment  of  not  over  five  years  or  both.  This 
offense  includes  the  stirring  up  of  the  crew  to  resist  lawful  orders  or 
"  to  refuse  or  neglect  their  proper  duty,  or  to  betray  their  proper 
trust,"  also  "  the  assembly  with  others  in  a  tumultuous  and  mutinous 
manner."  The  actual  revolt  or  mutiny  —  the  usurping  of  the  com- 
mand of  a  vessel,  is  punishable  by  a  fine  of  not  over  $2,000  or  im- 
prisonment of  not  over  ten  years,  or  both. 

Willful  disobedience  is  punishable  under  the  Seamen's  Act  by 
being  placed  in  irons  until  the  disobedience  ceases,  and,  on  arrival 
in  port,  by  forfeiture  of  wages,  not  exceeding  four  days'  pay,  or, 
at  the  discretion  of  the  court,  by  imprisonment  not  exceeding  a 
month. 

Continued  willful  disobedience  subjects  the  offender  to  being  placed 
in  irons  on  bread  and  water,  with  full  rations  every  fifth  day,  until 
the  disobedience  ceases,  and  the  forfeiture,  on  arrival  in  port,  of 
twelve  days'  pay  for  every  twenty-four  hours'  disobedience,  or  by 
imprisonment  not  over  three  months,  at  the  discretion  of  the  court. 

Desertion  is  punishable  under  the  Seamen's  Act  by  forfeiture  of 
clothes  and  effects  left  on  the  vessel,  and  of  wages  due,  the  former 
penalty  of  imprisonment  for  desertion  in  a  foreign  port  having  been 
abolished,  as  also  the  provision  for  the  arrest  of  seamen  deserting 
from  foreign  vessels.  This  proviso  is  much  more  lenient  -than  the 
laws  of  most  foreign  countries.  In  the  case  of  England,  if  the  de- 
sertion takes  place  outside  the  United  Kingdom  the  deserter  is  liable 


252  APPENDICES 

to  imprisonment  for  a  period  not  exceeding  twelve  weeks.  Imprison- 
ment for  desertion  in  the  coastwise  trade  was  abolished  by  the  Ma- 
guire  Act  in  1895. 

Miscellaneous  Offenses — Among  these  may  be  mentioned  the  fol- 
lowing : 

Seduction  of  a  female  passenger,  by  master,  officer,  crew  or  em- 
ployee is  punishable  by  a  fine  not  exceeding  $1,000  and  imprisonment 
not  exceeding  one  year,  or  both.  A  subsequent  marriage  may  be 
pleaded  in  bar  of  conviction.  Misconduct,  neglect  or  inattention  to 
duty,  resulting  in  loss  of  life,  is  pu'nishable  by  fine  not  exceeding 
$10,000,  or  imprisonment  not  more  than  ten  years,  or  both.  Aban- 
donment of  seamen  is  punishable  by  a  fine  not  over  $500,  or  imprison- 
ment not  over  six  months,  or  both.  Barratry  —  the  attempt  to  injure 
or  destroy  a  vessel  for  her  insurance  —  is  punishable  by  a  fine  not 
over  $10,000  and  imprisonment  not  over  ten  years.  Wrecking  — 
plundering  or  stealing  from  a  wrecked  vessel  —  calls  for  -a  fine  not 
exceeding  $5,000  and  imprisonment  rtot  exceeding  ten  years.  Will- 
fidly  Obstructing  Escape  from  a  wrecked  vessel  subjects  the  offender 
to  a  minimum  imprisonment  of  ten  years,  with  a  maximum  punish- 
ment of  imprisonment  for  life.  Plundering  a  vessel, —  fine  $5,000 
maximum,  and  imprisonment  not  exceeding  ten  years.  Entering  a 
vessel  with  intent  to  commit  felony, —  fine  $10,000  maximum,  and 
imprisonment  not  exceeding  five  years.  Casting  away  or  otherwise 
destroying  vessel  by  owner, —  imprisonment  for  life  or  any  lesser 
term;  by  other  person,  imprisonment  not  exceeding  ten  years. 

The  carrying  of  sheath-knives  by  seamen  in  the  merchant  service  is 
forbidden,  and  penalties  for  allowing  violation  of  this  prohibition  are 
imposed  upon  the  master. 

Officers,  seamen  and  employees  are  forbidden  to  visit  passengers' 
quarters  except  by  permission  of  the  master.  Severe  penalties  are 
imposed  upon  both  the  offending  person  and  upon  the  master  per- 
mitting the  violation. 

Corporal  punishment  is  prohibited  by  the  Seamen's  Act  under  penal- 
ties not  only  of  fine  and  imprisonment,  but  of  liability  to  civil  dam- 
ages. 

Ill  treatment  of  a  seaman,  beating  without  justifiable  cause,  wound- 
ing or  beating,  or  the  withholding  of  suitable  food  and  nourishment, 
or  the  infliction  of  any  cruel  and  unusual  punishment  is  punished 
by  fine  of  not  over  $1,000  or  imprisonment  of  not  over  five  years. 

Shanghaii'ng  was  prohibited,  under  severe  penalties,  in  1909. 

Assistance  in  Case  of  Collision. —  The  law  requires  every  master,  in 
the  case  of  a  collision,  so  far  as  h*e  can  do  so  without  serious  danger 
to  his  own  vessel  or  its  crew  or  passengers,  to  stand  by  the  other 
vessel  until  he  has  ascertained  that  she  has  no  need  of  further  as- 
sistance, and  to  render  such  assistance  as  may  be  practical,  also  to 
give  the  name  of  his  own  vessel,  her  port  of  registry,  and  other  ma- 
terial information.  For  failure  to  do  so  and  in  the  absence  of  rea- 
sonable cause  shown  for  such  failure,  a  collision,  in  the  absence  of 


NAVIGATION  LAWS  253 

proof  to  the  contrary,  is  deemed  to  have  been  caused  by  such  mas- 
ter's wrongful  act  or  neglect. 

For  failing  to  render  such  assistance,  or  giving  the  information 
required,  masters  are  liable  to  a  fine  of  $1,000  or  a  year's  imprison- 
ment, and  the  vessel  is  expressly  made  liable  for  the  amount  named, 
one-half  of  which  is  payable  to  the  informer. 

XV.     Rules  of  the  Road 

There  are  three  general  bodies  of  rules  covering  the  navigation  of 
vessels  with  respect  to  the  rules  of  the  road. 

The  first  of  these  are  the  International  Rules  which  were  adopted 
at  a  conference  of  maritime  nations  held  in  the  United  States  in 
1889,  which  are  now  in  force  in  practically  all  maritime  countries. 
They  apply  only  to  vessels  on  the  high  seas,  the  boundary  line  of 
which,  so  far  as  the  United  States  is  concerned,  has  been  defined  by 
an  act  of  Congress  passed  in  1913,  under  which  the  Secretary  of  Com- 
merce, having  been  authorized  to  fix  lines  separating  the  high  seas 
from  inland  waters  for  the  purposes  of  the  rules  of  the  road,  has 
defined  a  water  line  from  Cutler  Harbor,  Maine,  to  Puget  Sound. 

The  second  body  of  rules  is  known  as  the  Inland  Rules,  embodied 
in  a  federal  statute  passed  in  1897,  and  applicable  only  to  the  waters 
within  the  line  thus  defined.  These  rules,  generally  speaking,  are 
similar  to  the  International  Rules  but  differ  in  a  number  of  details. 

The  third  body  of  rules  is  what  is  known  as  the  Pilot  Rules  for 
certain  inland  waters  of  the  Atlantic  and  Pacific  coasts  and  of  the 
coast  of  the  Gulf  of  Mexico,  adopted  by  the  supervising  inspectors 
of  the  Steamboat  Inspection  Service,  approved  by  the  Secretary  of 
Commerce  under  authority  of  the  Act  of  June,  1897,  establishing  the 
Inland  Rules,  and  of  subsequent  acts  passed  in  1903  and  1913,  estab- 
lishing the  Department  of  Commerce,  These  rules  are  also  to  a  large 
extent  similar  to,  and  are  generally  in  harmony  with  'the  inland  rules, 
to  which  they  yield  in  case  of  conflict.  More  extended  reference  to 
these  rules,  the  knowledge  of  which  should  be  a  matter  of  second 
nature  to  seafaring  men,  is  beyond  the  scope  of  this  summary. 

XVI.     Pilotage 

As  the  states  had  enacted  pilotage  laws  before  the  adoption  of  the 
Constitution,  the  right  of  the  states  to  a  certain  measure  of  control 
over  pilotage,  within  their  boundaries,  has  always  been  recognized, 
and  consequently  a  dual  system  has  grown  up.  The  state  laws  are 
effective  except  where  the  subject  is  specifically  covered  by  a  federal 
law. 

As  to  the  federal  requirements,  all  vessels  engaged  in  the  coasting 
trade  are  required,  when  under  way  and  within  the  jurisdiction  of 
the  United  States,  that  is,  except  on  the  high  seas,  to  be  piloted  by 
officers  duly  licensed  under  the  federal  law  as  pilots  for  the  particular 
waters  covered.    This  is  covered  by  the  qualifications  laid  down  for 


254  APPENDICES 

the  various  classes  of  vessels  by  the  Board  of  Supervising  Inspectors, 
and  by  the  provision  of  our  law  that  the  qualifications  necessary  for 
obtaining  a  license  as  master,  mate  or  pilot  of  all  steam  vessels  shall 
be  as  prescribed  by  the  Board. 

Registered  steam  vessels,  when  engaged  in  foreign  trade,  and  all 
sailing  vessels  of  the  United  States  in  the  foreign  or  coasting  trade, 
are  exempt  from  this  requirement,  but  are  subject  to  the  require- 
ments of  the  pilotage  laws  of  the  several  states. 

The  master  of  a  foreign  vessel  is  not  required  to  employ  a  pilot 
licensed  under  the  laws  of  the  United  States. 

As  to  state  laws,  the  pilotage  of  all  vessels  in  state  waters  (except 
enrolled  steam  vessels  employed  in  the  coasting  trade,  which  are 
exempted  from  state  supervision  by  act  of  Congress),  is  regulated 
by  the  laws  of  the  respective  states.  There  are,  however,  a  number 
of  special  prohibitions  designed  to  prevent  controversy  between  the 
states.  Thus,  no  regulation  may  be  adopted  by  one  state  making  the 
discrimination  of  a  lower  pilotage  as  to  vessels  sailing  between  ports 
of  one  state  and  vessels  sailing  between  ports  of  different  states,  nor 
any  discrimination  against  steam  vessels ;  nor  may  a  state  require 
pilots  to  procure  a  state  license  in  addition  to  that  issued  by  the 
United  States.  It  is  to  be  noted  that  the  federal  law,  which  forbids 
the  states  to  require  enrolled  coastwise  steamers  to  take  on  state 
pilots,  does  not  apply  to  sailing  vessels  even  though  they  may  be  in  a 
tow  of  a  steam  tug  carrying  a  licensed  pilot,  a  discrimination  difficult 
to  justify. 

In  this  connection,  thrifty  ship  agents  handling  registered  vessels 
which  for  the  time  being  happen  to  be  engaged  in  the  coasting  trade, 
will  naturally  see  to  it  that  registers  are  exchanged  for  enrollments, 
wherever  a  substantial  saving  in  the  matter  of  exemption  from  state 
pilotage  fees  can  be  figured  out. 

It  is  to  be  noted,  however,  that  in  order  to  permit  this  very  saving, 
in  another  direction,  the  government  permits  vessels  engaged  in 
trade  through  the  canal  to  be  enrolled  and  licensed.  By  thus  obvi- 
ating the  necessity  for  registry,  state  pilotage  is  avoided. 

XVII.    Length  of  Hawsers 

The  law  provides  a  special  procedure  covering  length  of  hawsers 
in  the  case  of  tows.  The  Commissioner  of  Lighthouses,  the  Super- 
vising Inspector  of  the  Steamboat  Inspection  Service,  and  the  Com- 
missioner of  Navigation  are  directed  to  convene  as  a  board,  under 
directions  of  the  Secretary  of  Commerce,  and  to  prepare  regulations 
limiting  the  length  of  hawsers  between  towing  vessels  and  seagoing 
barges  in  tow,  and  the  length  of  such  tows  within  any  of  the  inland 
waters  of  the  United  States.  Willful  violation  of  these  regulations 
subjects  the  license  of  the  master  of  the  towing  vessel  to  suspension 
or  revocation. 


NAVIGATION  LAWS  255 

XVIII.     Inspection  of  Steam  Vessels 

All  steam  vessels  must  be  inspected  yearly  as  to  their  hulls,  and 
generally  as  to  whether  they  have  complied  with  all  the  requirements 
of  the  law  in  regard  to  fires,  boats,  pumps,  hose,  life  preservers, 
floats,  anchors,  etc.,  as  laid  down  in  the  Rules  and  Regulations  of  the 
United  States  Board  of  Supervising  Inspectors,  which  should  be 
familiar  to  all  masters.  Inspectors,  however,  have  the  widest  lati- 
tude. The  law  requires  that  they  shall  satisfy  themselves  that  the 
boat  is  in  a  condition  to  warrant  their  belief  that  she  may  be  used  in 
navigation  with  safety  for  life.  In  making  this  test  they  may  have 
her  put  under  way  or  may  adopt  any  other  suitable  means  to  test  her 
sufficiency  or  that  of  her  equipment.  This  yearly  inspection,  how- 
ever, may  be  suspended  under  special  regulations,  when  vessels  are 
laid  up  and  dismantled  and  out  of  commission.  In  this  connection 
it  is  perhaps  worth  remembering  that  the  laws  of  the  United  States 
make  it  a  criminal  offense  for  any  person  knowingly  to  send  to  sea 
an  American  ship,  whether  in  the  coast,  foreign  or  coastwise  trade, 
in  such  an  unseaworthy  state  that  the  life  of  any  person  is  liable  to 
be  endangered.  The  punishment  for  this  offense  is  properly  severe  — 
imprisonment  not  exceeding  five  years  or  a  fine  not  exceeding  $1,000 
or  both  at  the  discretion  of  the  court. 

The  law  also  provides  for  the  yearly  inspection  of  the  boilers  of  all 
steam  vessels,  including  tug-boats,  to  insure  compliance  with  the  re- 
quirements of  the  standards  issued  by  the  board. 

Barges. —  Seagoing  barges  of  over  100  tons  gross  are  also  subject 
to  yearly  inspection.  The  standard  applied  by  the  local  inspectors 
is  the  elastic  one  that  they  shall  satisfy  themselves  that  the  barge  is 
"  of  a  structure  suitable  for  the  service  in  which  she  is  to  be  em- 
ployed, has  suitable  accommodations  for  the  crew,  and  is  in  a  condi- 
tion to  warrant  the  belief  that  she  may  be  used  in  navigation  with 
safety  to  life."  In  the  case  of  such  barges  the  law  also  specially  pro- 
vides that  there  shall  be  at  least  one  lifeboat,  one  anchor  with  suit- 
able chain  or  cable,  and  at  least  one  life  preserver  for  each  person 
on  board. 

Without  such  certificate  of  inspection  actually  in  force  at  the  time, 
no  document  can  be  issued  for  a  barge,  and  for  navigating  a  barge 
without  a  certificate  or  without  the  equipment  referred  to  the  owner 
is  liable  to  a  penalty  of  $500.  Certificates  of  inspection  for  barges 
are  issued  in  the  same  manner  as  for  seagoing  vessels  generally. 
Where  the  certificate  is  not  available  at  the  time  of  securmg  a  new 
document,  evidence  that  it  is  still  in  force  must  be  produced  to  the 
Collector,  which  may  be  in  the  form  of  a  telegraphic  confirmation  of 
the  fact,  from  the  office  of  the  Steamboat  Inspection  Bureau,  Depart- 
ment of  Commerce,  Washington. 

The  Certificate  of  Inspection —  Upon  the  making  of  every  inspec- 
tion, if  the  inspectors  refuse  to  grant  a  certificate,  they  are  required 
to  sign  a  written  statement  of  their  reasons  for  their  disapproval. 


256  APPENDICES 

If  approval  is  granted,  however,  it  is  their  duty  to  immediately  de- 
liver to  the  master  or  owner  a  temporary  certiticate,  which  is  good 
until  the  regular  certificate  has  been  delivered.  Copies  of  these  cer- 
tificates are  kept  on  file  in  the  inspector's  office  or  in  the  office  of  the 
Collector  of  Customs.  The  original  is  required  to  be  posted  in  a 
conspicuous  place  in  the  vessel,  to  be  kept  there  at  all  times  except 
where  it  is  otherwise  permitted  in  special  cases  under  the  regulations. 

Manning  of  Inspected  Vessels. —  The  inspection  of  the  local  in- 
spectors covers  not  only  the  hull  and  boiler  and  equipment,  but  also 
the  questions  of  manning,  character  of  merchandise  to  be  carried,  and 
the  mode  of  packing  dangerous  articles,  etc. 

The  local  inspectors,  on  making  the  general  inspection  of  the  vessel, 
are  required  to  make  entry  in  the  certificate  of  inspection  of  such 
complement  of  licensed  officers  and  crew,  including  certificated  life- 
boat men,  as  they  consider  necessary  for  her  safety,  this  entry  being 
subject  to  right  of  appeal  to  the  Supervising  Inspector  General. 

Where  such  a  vessel  is  for  any  reason  deprived  of  the  services  of 
any  number  of  the  crew,  without  the  consent  or  fault  of  the  master 
or  any  person  interested  in  the  vessel,  she  is  permitted  to  proceed  on 
her  voyage  if,  in  the  judgment  of  the  master,  she  is  still  sufficiently 
manned.  It  is  required,  however,  that  the  master  shall  ship,  if  ob- 
tainable, a  number  equal  to  those  whose  services  he  has  been  deprived 
of,  and  of  the  same  or  higher  grade,  also  that  he  shall  explain  in 
writing  the  situation  to  the  local  inspectors  within  twelve  hours  of 
the  arrival  of  the  vessel  at  its  destination  under  penalty  of  $50.  The 
penalty  for  undermanning  the  vessel  is  $100,  or  in  case  of  an  insuffi- 
cient number  of  licensed  officers  $500. 

XIX.    Register  Tonnage 

Three  methods  of  measuring  the  capacity  of  a  ship  are  more  or  less 
in  general  use  in  the  maritime  world. 

The  displacement  tonnage,  or  weight  of  the  volume  of  water  dis- 
placed by  the  ship  when  fully  loaded  with  all  her  crew,  coal,  sup- 
plies, etc.,  is  in  general  use  by  the  navies  of  the  world  for  assuring 
accuracy  and  uniformity,  but  of  course  is  not  adapted  to  merchant 
vessels  on  which  the  cargo  varies  from  voyage  to  voyage. 

The  deadweight  tonnage,  or  actual  weight  of  the  cargo  which  a 
merchant  ship  will  transport,  obviously  is  adaptable  only  for  vessels 
carrying  bulk  cargoes  and  not  for  general  cargo  ships.  Each  of  these 
measurements  is  recorded  in  long  tons  avoirdupois. 

The  American  registered  tonnage  system  follows  the  Moorsom 
rules  adopted  in  England  in  1854,  which  are  now  in  effect  in  practi- 
cally every  maritime  country.  It  aims  to  express  the  entire  cubical 
content  of  a  merchant  ship  in  unit  tons  of  100  cubic  feet,  this  figure 
having  been  arrived  at  in  England,  on  the  adoption  of  the  present 
system,  when  it  was  found  that  the  ratio  of  the  total  registered  ton- 
nage of  the  British  merchant  marine  to  cubic  feet  of  contents  was 
slig'htly  over  98. 


NAVIGATION  LAWS  257 

The  measurement  rules  of  the  United  States  are  carefully  and 
elaborately  defined  in  the  statutes  themselves. 

Under  the  statutes  net  tonnage  is  ascertained  by  deducting  from 
gross  tonnage  that  proportion  of  the  ship's  space  occupied  by  engine's 
machinery,  boilers,  coal  bunkers  and  certain  other  minor  spaces,  such 
as  those  which  inclose  the  steering  gear  below  deck,  the  boatman's 
stores,  chart-houses,  donkey  engine  and  sail  room. 

To  encourage  the  building  of  ample  forecastles,  crews'  quarters, 
etc.,  as  well  as  for  other  reasons,  the  rule  is  adopted  by  almost  all 
maritime  nations  that  tonnage  taxes  and  other  tonnage  dues  shall  be 
collected  not  on  gross  but  upon  the  net  tonnage.  This  also  includes 
the  usual  commercial  charges  for  towage,  dockage  and  wharfage. 
Official  U.  S.  statistics  of  entrances  and  clearances  are  in  terms  of 
net-register  tonnage,  as  also  time  charter  rates  when  not  specifically 
based  on  dead-weight  tonnage.  The  incentive  to  understate  net  regis- 
ter is  thus  strong. 

In  the  case  of  tugs  engaged  in  foreign  service  and  which  are  there- 
fore subject  to  tonnage  duties,  it  becomes  important  to  see  that  the 
net  tonnage,  which  should  ordinarily  be  a  very  small  figure,  is  held 
to  the  lowest  limit.  For  instance,  seagoing  and  oceangoing  tugs  have 
been  reported  with  a  tonnage  as  low  as  eight  and  ten  tons.  On  the 
other  hand,  many  American  tugs  of  no  larger  capacity  are  in  the 
habit  of  carrying  a  net  tonnage  far  exceeding  this  amount. 

XX.    Tonnage  Taxes 

Tonnage  tax  is  levied  on  every  vessel  engaged  in  trade  upon  her 
arrival  by  sea  from  a  foreign  port  unless  she  is  in  distress.  It  is  not 
levied  on  more  than  five  entries  at  the  same  rate  during  any  one  year 
nor  on  vessels  arriving  otherwise  than  by  sea  from  foreign  ports  at 
which  equivalent  taxes  or  dues  are  not  imposed  on  vessels  of  the 
United  States. 

This  tax  varies  from  two  to  six  cents  per  net  ton,  the  two  cent  rate 
applying  to  ports  in  North  and  Central  America,  the  West  Indies,  in- 
cluding Cuba  and  the  Bermuda  Islands,  the  coast  of  South  America 
bordering  on  the  Caribbean  Sea,  and  New  Foundland.  By  special 
treaty  arrangement  it  also  applies  to  Norway  and  Sweden.  The  six 
cent  rate  applies  to  all  other  trade. 

Vessels  entering  otherwise  than  by  sea  from  a  foreign  port  at 
which  tonnage  or  lighthouse  dues  or  other  equivalent  tax  or  taxes  are 
not  imposed  on  vessels  of  the  United  States,  are  exempt  from  the 
tonnage  duty  of  two  cents  per  ton,  not  to  exceed  in  the  aggregate 
ten  cents  per  ton  in  any  one  year. 

These  tonnage  duties  are  substantially  similar  to  the  corresponding 
English  rates,  but  are  materially  lower  than  corresponding  charges 
in  European  continental  ports.  There  are  a  number  of  special  in- 
stances of  exceptional  cases,  but  which  are  not  of  sufficient  frequency 
or  importance  to  deserve  special  mention.     It  is  well  to  remember, 


258  APPENDICES 

however,  that  if  any  officer  of  an  American  vessel  should  happen  not 
to  be  a  citizen  a  penalty  of  fifty  cents  a  ton  is  imposed,  except  as 
provided  by  presidential  proclamation  in  the  case  of  certain  vessels  of 
foreign  origin. 

Foreign  steam  tugs  employed  in  towing  coastwise  vessels  are  liable 
to  a  tonnage  of  fifty  cents  a  ton  on  the  measurement  of  the  vessel 
towed,  unless  the  towing  is  done  in  whole,  or  in  part,  within  or  upon 
foreign  waters,  or  when  the  tug-boat  is  owned  by  a  foreign  railway 
company  whose  cars  enter  into  the  United  States  by  means  of  such 
transportation. 

XXL    Navigation  Fees 

Vessels  engaged  in  foreign  trade  with  other  than  Canadian  ports 
are  subject  to  navigation  fees  upon  entry.  Thus  if  she  is  less  than 
100  tons  burden  the  fee  is  $1.50.  Over  that  amount  the  fee  is  $2.50. 
Her  clearance  fee  is  at  the  same  rate. 

In  the  event  that  she  might  have  any  dutiable  merchandise  on 
board  she  would  also  be  liable  under  similar  conditions  to  the  usual 
fees  for  surveyor's  services  in  connection  with  her  customs  entries, 
to  wit,  $1.50,  if  less  than  100  tons,  and  $3  if  more  than  100  tons. 
Where  she  carries  no  dutiable  merchandise,  however,  the  fee  is  a 
nominal  one  of  sixty-seven  cents,  which  applies,  of  course,  in  the 
case  of  foreign  ballast  which  is  not  dutiable. 

XXII.    Annual  List  of  Merchant  Vessels 

The  law  provides  that  the  Commissioner  of  Navigation  shall  pub- 
lish annually  a  list  of  vessels  of  the  United  States  belonging  to  the 
commercial  marine,  specifying  their  official  number,  signal  letters, 
name,  rig,  tonnage,  home  port,  and  place  and  date  of  build,  distin- 
guishing sailing  vessels  from  those  propelled  by  steam  or  other  mo- 
tive power.  The  list  for  the  year  1919  was  the  fifty-first  list  so  pub- 
lished. 

Under  the  provisions  of  an  act  passed  in  1912  it  is  required  that 
upon  affidavit  by  a  reputable  ship  builder  as  to  the  rebuilding  of 
unrigged  wooden  vessels,  giving  date  and  place  of  their  rebuilding,  and 
certifying  that  they  are  sound  and  free  from  rotten  wood  and  in  every 
respect  seaworthy,  a  notation  to  this  effect  shall  be  included  in  the 
list.  It  is  noted  that  the  provision  applies  only  to  unrigged  wooden 
vessels,  and  thus  does  not  cover  the  case  of  rigged  barges,  whatever 
their  size. 

XXriI.     Numbering  of  Undocumented  Motor  Boats 

In  1918  a  law  was  passed  requiring  the  numbering  of  all  theretofore 
undocumented  motor  boats,  except  vessels  under  sixteen  feet  tem- 
porarily equipped  with  detachable  motors.  These  numbers  are 
awarded  by  the  collectors  of  customs  on  application  of  the  owner  or 


NAVIGATION  LAWS  259 

master,  and  are  required  to  be  painted,  or  otherwise  attached,  to  the 
bow  of  the  vessel,  and  to  be  not  less  than  three  inches  in  size.  Vio- 
lation of  the  act  is  subject  to  a  penalty  of  $10. 
%  From  the  date  of  the  passage  of  the  act  on  December  7,  1917,  up 
to  July  I,  1919,  nearly  100,000  such  vessels  had  been  numbered,  and 
the  experiment  had  proved  highly  successful  in  assisting  the  enforce- 
ment of  the  navigation  laws  and  the  collection  of  taxes  as  well  as 
the  enforcement  of  harbor  police  laws  and  regulations. 

XXIV.    Administration  of  Navigation  Laws 

Practically  every  department  of  the  government  has  to  do  with 
some  feature  or  other  of  the  navigation  laws  as  affecting  ship  build- 
ing, maritime  commerce  and  ocean  transportation.  Primarily,  how- 
ever, the  administration  of  the  laws  is  in  the  hands  of  the  Department 
of  Commerce,  under  the  immediate  direction  of  the  Bureau  of  Navi- 
gation, the  Steamboat  Inspection  Service  and  the  United  States  Ship- 
ping Commissioners.  Other  branches  of  government  service  whose 
functions  touch  on  some  phase  of  navigation  are  the  Public  Health 
Service,  with  its  hospitals  and  quarantine  stations,  and  the  Coast 
Guard  which,  since  1915,  has  included  the  Revenue  Cutter  and  Life 
Saving  Service.  The  War  and  Navy  departments  also  have  various 
functions  related  primarily  to  the  national  defense.  The  activities 
of  the  Shipping  Board  will  be  separately  reviewed. 

Commissioner  of  Navigation. —  The  Bureau  of  Navigation,  under 
the  head  of  the  Commissioner  of  Navigation,  has  general  superin- 
tendence of  the  merchant  marine  and  seamen  so  far  as  they  are  not 
directly  subject  to  other  departments;  it  controls  the  documentation 
of  vessels  and  has  supervision  of  the  laws  relating  to  measurement  of 
vessels,  signal  numbers  and  the  questions  relating  to  the  tonnage  tax. 
It  is  charged  further  with  the  preparation  of  the  annual  list  of  ves- 
sels belonging  to  the  merchant  marine,  has  authority  to  change  the 
names  of  vessels,  and  is  charged  with  the  preparation  of  annual  re- 
ports to  the  Secretary,  and  with  numerous  other  miscellaneous  but 
important  duties. 

Steamboat  Inspection  Service. —  The  Steamboat  Inspection  Service 
is  under  the  direction  of  a  Supervising  Inspector  General  appointed 
by  the  President,  in  addition  to  which  there  are  ten  supervising  in- 
spectors who  meet  as  a  Board  in  Washington  at  least  once  a  year  and 
establish  regulations  necessary  to  carry  out  the  inspection  laws  re- 
lating to  vessels,  subject  to  the  right  of  the  Secretary  of  Commerce 
to  convene  a  special  executive  committee,  composed  of  the  Supervis- 
ing Inspector  General  and  two  supervising  inspectors,  who  have 
power  to  alter  and  amend  these  rules  with  the  approval  of  the  secre- 
tary. 

The  principal  duty  of  the  supervising  inspectors  is  to  supervise  the 
work  of  a  large  number  of  local  inspectors  of  hulls  and  of  boilers,  and 
who  in  their  respective  districts,  upon  designation  of  the  Secretary 


26o  APPENDICES 

of  Commerce,  constitute  the  Board  of  Local  Inspectors  charged  with 
the  duties  of  inspection  and  the  issuance  and  supervision  of  Ucenses 
already  referred  to. 

Shipping  Commissioners. —  The  Shipping  Commissioners  of  the 
United  States  form  a  highly  responsible  body  of  officers  with  semi- 
judicial  functions,  who  are  directly  responsible  to  the  Secretary  of 
Commerce,  by  whom  they  are  appointed.  The  law  provides  one  such 
officer  for  each  port  of  entry  which  is  a  port  of  ocean  navigation, 
and  which  in  the  judgment  of  the  Secretary  shall  require  the  services 
of  a  Commissioner,  and  for  whom  Congress  has  made  an  appropri- 
ation. Generally  speaking,  the  duties  of  the  Shipping  Commissioner 
are  to  afford  facilities  for  engaging  seamen ;  to  superintend  their  en- 
gagement and  discharge  in  the  manner  prescribed  by  law ;  to  provide 
means  for  securing  their  presence  on  the  board  at  the  proper  time ;  to 
facilitate  the  making  of  apprentices  in  the  sea  service;  and  to  perform 
other  duties  imposed  upon  them. 

One  of  the  most  important  and  useful  functions  of  a  Shipping  Com- 
missioner, particularly  when  the  office  is  in  capable  hands,  is  that  of 
arbitrating  claims  between  master,  consignee,  agent  or  owner  or  any 
of  the  crew,  when  both  parties  agree  in  writing  to  submit  to  the 
award,  it  being  provided  by  law  that  an  award  made  by  a  Commis- 
sioner in  such  case  is  binding  on  both  parties  and  in  any  legal  pro- 
ceedings is  to  be  deemed  conclusive  of  the  rights  of  the  party. 

The  Commissioners  are  given  authority  to  call  upon  owners,  agents, 
masters,  for  proof  or  production  of  books,  papers,  etc.,  or  to  give 
evidence  before  the  Commissioner  subject  to  a  penalty  and  punish- 
ment for  contempt  for  failure  to  so  comply. 

As  it  is  the  practice  to  insert  arbitration  clauses  in  all  steamers' 
shipping  articles,  excepting  those  operated  by  the  Shipping  Board, 
which  should  be  carefully  read  to  the  crews  before  they  are  signed, 
this  duty  is  generally  viewed  by  captains  and  owners  as  an  invaluable 
aid  to  shipping  and  has  been  accepted  also  by  the  majority  of  seamen. 
The  work  of  the  Commissioners  in  tliis  direction  has  been  so  suc- 
cessful that  an  effort  was  recently  made  to  confer  upon  the  Commis- 
sioners by  law  certain  magisterial  powers  subject  to  appeal  to  the 
United  States  District  Courts.  So  far  the  effort  has  been  unsuc- 
cessful. 

Having  in  mind  their  responsibilities  and  enormous  possibilities  of 
service  to  navigation.  Shipping  Commissioners  are  among  the  most 
pitifully  underpaid  of  government  officials.  As  an  illustration  of  this 
it  may  be  noted  that  the  Commissioners  in  the  great  ports  of  Phila- 
delphia and  of  Norfolk  receive  salaries  of  $2,400  and  of  $1,800,  re- 
spectively. 

XXV.    The  Shipping  Board 

The  United  States  Shipping  Board  was  created  before  the  war,  by 
the  Shipping  Act  of  1916,  with  the  dual  function  and  purpose,  first  of 
acting  as  the  administrative  agent  of  the  government  in  developing 


NAVIGATION  LAWS  261 

the  merchant  marine  and  the  naval  auxiHary  in  peace  time,  and,  sec- 
ond, that  of  meeting  the  shipping  problems  incident  to  a  possible  war. 

Its  most  important  powers  have  heretofore  been  exercised  through 
the  instrumentality  of  the  United  States  Shipping  Board  Emergency 
Fleet  Corporation,  organized  by,  and  the  stock  of  which  has  been 
held  by,  the  Shipping  Board,  for  the  Government.  The  primary 
function  of  the  Corporation  was  the  construction  of  vessels,  but  its 
work  was  soon  extended  to  include  their  operation,  in  an  effort  to 
avoid  the  embarrassments,  prior  to  our  entering  the  war,  of  having 
our  vessels,  if  operated  by  such  purely  public  administrative  agency 
as  the  Shipping  Board,  treated  as  public  vessels  in  foreign  ports.  In 
the  beginning  it  w-as  intended  that  the  Corporation  should  function  in 
the  character  of  a  private  corporation,  and  50,000,000  dollars  was 
appropriated  to  it  for  the  construction  of  vessels,  but  during  the  war 
it  acted  primarily  as  the  agent  of  the  President,  claiming  the  immuni- 
ties and  privileges  incident  to  that  somewhat  anomalous  relation, 
and  has  expended  upwards  of  3,000,000,000  dollars,  its  capital  remain- 
ing intact.  The  actual  operation  of  vessels  by  the  Corporation  has 
been  carried  out  through  the  instrumentality  of  a  specially  organized 
Division  of  Operations,  which  was  largely  separate  from  the  Corpora- 
tion itself,  and  subject  to  the  direction  and  supervision  of  the  Ship- 
ping Board. 

The  jurisdiction  of  the  Shipping  Board,  however,  has  not  been  con- 
fined to  vessels  in  which  the  government  is  interested  as  owner  or 
charterer.  From  the  first  the  Board  has  had  authority  to  enforce  a 
general  prohibition  against  unfair  discrimination  and  preferences  and 
against  the  improper  influencing  of  marine  insurance  companies  by 
common  carriers  by  water,  whether  in  foreign  or  interstate  com- 
merce, not  including  tramps,  and  has  also  exercised  the  right  of 
supervising  and  regulating  tariffs  fixed  by  common  carriers  in  inter- 
state commerce.  In  this  field,  however,  the  jurisdiction  of  the  Board 
does  not  overlap  the  jurisdiction  of  the  Interstate  Commerce  Commis- 
sion, which  has  authority  to  establish  through  routes  and  joint  rates 
where  they  involve  water  transportation.  Like  the  Interstate  Com- 
merce Commission  the  orders  of  the  Shipping  Board  are  subject  to 
review  by  the  federal  courts. 

A  recent  provision  of  the  Merchant  Marine  Act  (1920)  reorganizes 
and  strengthens  the  Shipping  Board,  consolidating  and  centralizing 
its  control  and  giving  it  wide  powers  in  the  matter  of  developing  the 
American  merchant  marine  and  of  encouraging  the  establishment  of 
new  lines  and  the  investigation  generally  of  all  matters  relative  to  the 
advancement  of  merchant  marine. 

Among  other  new  powers  of  general  scope  given  to  the  Board  is 
that  under  which  it  is  authorized  to  make  rules  and  regulations  af- 
fecting shipping  in  the  foreign  trade,  wherever  necessary,  in  order 
to  meet  special  conditions  in  foreign  trade  arising  out  of  foreign 
laws  or  competitive  methods  practiced  in  foreign  countries.  The 
Board  is  also  authorized  to  request  the  heads  of  departments  to  sus- 


262  APPENDICES 

pend  and  modify  regulations  or  to  make  new  regulations  affecting 
shipping  in  the  foreign  trade,  except  those  relating  to  the  Public 
Health  Service,  the  Consular  Service  and  the  Steamboat  Inspection 
Service,  and  no  rules  or  regulations  excepting  those  affecting  the 
services  named,  may  be  established  by  any  department  without  being 
first  submitted  to  the  Board  for  its  approval  and  final  action  taken 
thereon  by  the  Board  or  the  President. 


APPENDIX  II 

THE  MERCHANT  MARINE  ACT  OF  1920 1 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  it  is  necessary 
for  the  national  defense  and  for  the  proper  growth  of  its  foreign  and 
domestic  commerce  that  the  United  States  shall  have  a  merchant 
marine  of  the  best  equipped  and  most  suitable  tjpes  of  vessels  suffi- 
cient to  carry  the  greater  portion  of  its  commerce  and  serve  as  a 
naval  or  military  auxiliary  in  time  of  war  or  national  emergency, 
ultimately  to  be  owned  and  operated  privately  by  the  citizens  of  the 
United  States ;  and  it  is  hereby  declared  to  be  the  policy  of  the  United 
States  to  do  whatever  may  be  necessary  to  develop  and  encourage  the 
maintenance  of  such  a  merchant  marine,  and,  in  so  far  as  may  not 
be  inconsistent  with  the  express  provisions  of  this  Act,  the  United 
States  Shipping  Board  shall,  in  the  disposition  of  vessels  and  ship- 
ping property  as  hereinafter  provided,  in  the  making  of  rules  and 
regulations,  and  in  the  administration  of  the  shipping  laws  keep  al- 
ways in  view  this  purpose  and  object  as  the  primary  end  to  be 
attained. 

Sec.  2.  (a)  That  the  following  Acts  and  parts  of  Acts  are  hereby 
repealed,  subject  to  the  limitations  and  exceptions  hereinafter,  in  this 
Act,  provided: 

(i)  The  emergency  shipping  fund  provisions  of  the  Act  entitled 
"  An  Act  making  appropriations  to  supply  urgent  deficiencies  in  ap- 
propriations for  the  Military  and  Naval  Establishments  on  account  of 
war  expenses  for  the  fiscal  year  ending  June  30,  1917,  and  for  other 
purposes,"  approved  June  15,  1917,  as  amended  by  the  Act  entitled 
"  An  Act  to  amend  the  emergency  shipping  fund  provisions  of  the 
Urgent  Deficiency  Appropriation  Act,  approved  June  15,  1917,  so  as 
to  empower  the  President  and  his  designated  agents  to  take  over 
certain  transportation  systems  for  the  transportation  of  shipyard 
and  plant  employees,  and  for  other  purposes,"  approved  April  22, 
1918,  and  as  further  amended  by  the  Act  entitled  "  An  Act  making 
appropriation  to  supply  deficiencies  in  appropriations  for  the  fiscal 
year  ending  June  30,  1919,  and  prior  fiscal  years,  on  account  of  war 
expenses,  and  for  other  purposes,"  approved  November  4,  1918; 

(2)   Section  3  of  such  Act  of  April  22,  1918; 

1  Public,  No.  261,  66th  Congress. 

An  Act  to  provide  for  the  promotion  and  maintenance  of  the  Arnerican 
merchant  marine,  to  repeal  certain  emergency  legislation,  and  provide  for 
the  disposition,  regulation,  and  use  of  property  acquired  thereunder,  and 
for  other  purposes. 

263 


264  APPENDICES 

(3)  The  paragraphs  numbered  2  and  3  under  the  heading  "  Emer- 
gency shipping  fund"  in  such  Act  of  November  4,  1918;  and 

(4)  The  Act  entitled  "  An  Act  to  confer  on  the  President  power  to 
prescribe  charter  rates  and  freight  rates  and  to  requisition  vessels, 
and  for  other  purposes,"  approved  July  18,  igiS. 

(5)  Sections  5,  7,  and  8,  Shipping  Act,  1916. 

(b)  The  repeal  of  such  Acts  or  parts  of  Acts  is  subject  to  the  fol- 
lowing limitations: 

(i)  All  contracts  or  agreements  lawfully  entered  into  before  the 
passage  of  this  Act  under  any  such  Act  or  part  of  Act  shall  be  as- 
sumed and  carried  out  by  the  United  States  Shipping  Board,  herein- 
after called  "  the  board." 

(2)  All  rights,  interests,  or  remedies  accruing  or  to  accrue  as  a 
result  of  any  such  contract  or  agreement  or  of  any  action  taken  in 
pursuance  of  any  such  Act  or  parts  of  Acts  shall  be  in  all  respects 
as  valid,  and  may  be  exercised  and  enforced  in  like  manner,  subject 
to  the  provisions  of  subdivision  (c)  of  this  section,  as  if  this  Act  had 
not  been  passed. 

(3)  The  repeal  shall  not  have  the  effect  of  extinguishing  any 
penalty  incurred  under  such  Acts  or  parts  of  Acts,  but  such  Acts  or 
parts  of  Acts  shall  remain  in  force  for  the  purpose  of  sustaining  a 
prosecution  for  enforcement  of  the  penalty  therein  provided  for  the 
violation  thereof. 

(4)  The  board  shall  have  full  power  and  authority  to  complete  or 
conclude  any  construction  work  begun  in  accordance  with  the  pro- 
visions of  such  Acts  or  parts  of  Acts  if,  in  the  opinion  of  the  board, 
the  completion  or  conclusion  thereof  is  for  the  best  interests  of  the 
United  States. 

(c)  As  soon  as  practicable  after  the  passage  of  this  Act  the  board 
shall  adjust,  settle,  and  liquidate  all  matters  arising  out  of  or  incident 
to  the  exercise  by  or  through  the  President  of  any  of  the  powers  or 
duties  conferred  or  imposed  upon  the  President  by  any  such  Act  or 
parts  of  Acts;  and  for  this  purpose  the  board,  instead  of  the  Presi- 
dent, shall  have  and  exercise  any  of  such  powers  and  duties  relating 
to  the  determination  and  payment  of  just  compensation:  Provided, 
That  any  person  dissatisfied  with  any  decision  of  the  board  shall 
have  the  same  right  to  sue  the  United  States  as  he  would  have  had 
if  the  decision  had  been  made  by  the  President  of  the  United  States 
under  the  Acts  hereby  repealed. 

Sec.  3.  (a)  That  section  3  of  the  "  Shipping  Act,  1916,"  is  amended 
to  read  as  follows : 

"  Sec.  3.  That  a  board  is  hereby  created  to  be  known  as  the  United 
States  Shipping  Board  and  hereinafter  referred  to  as  the  board. 
The  board  shall  be  composed  of  seven  commissioners,  to  be  appointed 
by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate ; 
and  the  President  shall  designate  the  member  to  act  as  chairman  of 
the  board,  and  the  board  may  elect  one  of  its  members  as  vice  chair- 
man.    Such  commissioners  shall  be  appointed  as  soon  as  practicable 


THE  AIERCHANT  MARINE  ACT  265 

after  the  enactment  of  this  Act  and  shall  continue  in  office  two  for  a 
term  of  one  year,  and  the  remaining  five  for  terms  of  two,  three, 
four,  five,  and  six  years,  respectively,  from  the  date  of  their  appoint- 
ment, the  term  of  each  to  be  designated  by  the  President,  but  their 
successors  shall  be  appointed  for  terms  of  six  years,  except  that  any 
person  chosen  to  fill  a  vacancy  shall  be  appointed  only  for  the  un- 
expired term  of  the  commissioner  whom  he  succeeds. 

"  The  commissioners  shall  be  appointed  with  due  regard  to  their 
fitness  for  the  efficient  discharge  of  the  duties  imposed  on  them  by  this 
Act,  and  two  shall  be  appointed  from  the  States  touching  the  Pacific 
Ocean,  two  from  the  States  touching  the  Atlantic  Ocean,  one  from 
the  States  touching  the  Gulf  of  Mexico,  one  from  the  States  touching 
the  Great  Lakes  and  one  from  the  interior,  but  not  more  than  one 
shall  be  appointed  from  the  same  State.  Not  more  than  four  of  the 
commissioners  shall  be  appointed  from  the  same  political  party.  A 
vacancy  in  the  board  shall  be  filled  in  the  same  manner  as  the  original 
appointments.  No  commissioner  shall  take  any  part  in  the  considera- 
tion or  decision  of  any  claim  or  particular  controversy  in  which  he 
has  a  pecuniary  interest. 

"  Each  commissioner  shall  devote  his  time  to  the  duties  of  his 
office,  and  shall  not  be  in  the  employ  of  or  hold  any  official  relation 
to  any  common  carrier  or  other  person  subject  to  this  Act,  nor  while 
holding  such  office  acquire  any  stock  or  bonds  thereof  or  become 
pecuniarily  interested  in  any  such  carrier. 

"  The  duties  of  the  board  may  be  so  divided  that  under  its  super- 
vision the  directorship  of  various  activities  may  be  assigned  to  one 
or  more  commissioners.  Any  commissioner  may  be  removed  by  the 
President  for  inefficiency,  neglect  of  duty,  or  malfeasance  in  office. 
A  vacancy  in  the  board  shall  not  impair  the  right  of  the  remaining 
members  of  the  board  to  exercise  all  its  powers.  The  board  shall 
have  an  official  seal,  which  shall  be  judicially  noticed. 

"  The  board  may  adopt  rules  and  regulations  in  regard  to  its  pro- 
cedure and  the  conduct  of  its  business.  The  board  may  employ 
within  the  limits  of  appropriations  made  therefor  by  Congress  such 
attorneys  as  it  finds  necessary  for  proper  legal  service  to  the  board 
in  the  conduct  of  its  work,  or  for  proper  representation  of  the  public 
interest  in  investigations  made  by  it  or  proceedings  pending  before 
it  whether  at  the  board's  own  instance  or  upon  complaint,  or  to  appear 
for  or  represent  the  board  in  any  case  in  court  or  other  tribunal. 
The  board  shall  have  such  other  rights  and  perform  such  other  duties 
not  inconsistent  with  the  Merchant  Marine  Act,  1920,  as  are  con- 
ferred by  existing  law  upon  the  board  in  existence  at  the  time  this 
section  as  amended  takes  effect. 

"  The  commissioners  in  office  at  the  time  this  section  as  amended 
takes  effect  shall  hold  office  until  all  the  commissioners  provided  for 
in  this  section  as  amended  are  appointed  and  qualify." 

(b)  The  first  sentence  of  section  4  of  the  "  Shipping  Act,  1916," 
is  amended  to  read  as  follows : 


266  APPENDICES 

"  Sec.  4.  That  each  member  of  the  board  shall  receive  a  salary  of 
$12,000  per  annum." 

Sec.  4.  That  all  vessels  and  other  property  or  interests  of  what- 
soever kind,  including  vessels  or  property  in  course  of  construction 
or  contracted  for,  acquired  by  the  President  through  any  agencies 
whatsoever  in  pursuance  of  authority  conferred  by  the  Acts  or  parts 
of  Acts  repealed  by  section  2  of  this  Act,  or  in  pursuance  of  the  joint 
resolution  entitled  "  Joint  resolution  authorizing  the  President  to  take 
over  tor  the  United  States  the  possession  and  thle  of  any  vessel 
within  its  jurisdiction,  which  at  the  time  of  coming  therein  was  owned 
in  whole  or  in  part  by  any  corporation,  citizen,  or  subject  of  any  na- 
tion with  which  the  United  States  may  be  at  war,  or  was  under  regis- 
ter of  any  such  nation,  and  for  other  purposes,"  approved  May  12, 
1917,  with  the  exception  of  vessels  and  property  the  use  of  which  is 
in  the  opinion  of  the  President  required  by  any  other  branch  of  the 
Government  service  of  the  United  States,  are  hereby  transferred  to 
the  board :  Provided,  That  all  vessels  in  the  military  and  naval  serv- 
ice of  the  United  States,  including  the  vessels  assigned  to  river  and 
harbor  work,  inland  waterways,  or  vessels  for  such  needs  in  the 
course  of  construction  or  under  contract  by  thje  War  Department, 
shall  be  exempt  from  the  provisions  of  this  Act. 

Sec.  5.  That  in  order  to  accomplish  the  declared  purposes  of  this 
Act,  and  to  carry  out  the  policy  declared  in  section  i  hereof,  the 
board  is  authorized  and  directed  to  sell,  as  soon  as  practicable,  con- 
sistent with  good  business  methods  and  the  objects  and  purposes  to 
be  attained  by  this  Act,  at  public  or  private  competitive  sale  after 
appraisement  and  due  advertisement,  to  persons  who  are  citizens  of 
the  United  States  except  as  provided  in  section  6  of  this  Act,  all  of 
the  vessels  referred  to  in  section  4  of  this  Act  or  otherwise  acquired 
by  the  board.  Such  sale  shall  be  made  at  such  prices  and  on  such 
terms  and  conditions  as  the  board  may  prescribe,  but  the  completion 
of  the  payment  of  the  purchase  price  and  interest  shall  not  be  de- 
terred more  than  fifteen  years  after  the  making  of  the  contract  of 
sale.  The  board  in  fixing  or  accepting  the  sale  price  of  such  vessels 
shall  take  into  consideration  the  prevailing  domestic  and  foreign  mar- 
ket price  of,  the  available  supply  of,  and  the  demand  for  vessels, 
existing  freight  rates  and  prospects  of  their  maintenance,  the  cost  of 
constructing  vessels  of  similar  types  under  prevailing  conditions,  as 
well  as  the  cost  of  the  construction  or  purchase  price  of  the  vessels 
to  be  sold,  and  any  other  facts  or  conditions  that  would  influence  a 
prudent,  solvent  business  man  in  the  sale  of  similar  vessels  or  prop- 
erty which  he  is  not  forced  to  sell.  All  sales  made  under  the  author- 
ity of  this  Act  shall  be  subject  to  the  limitations  and  restrictions  of 
section  9  of  the  "  Shipping  Act,  1916,"  as  amended. 

Sec.  6.  That  the  board  is  authorized  and  empowered  to  sell  to 
aliens,  at  such  prices  and  on  such  terms  and  conditions  as  it  may 
determine,  not  inconsistent  with  the  provisions  of  section  5  (except 
that  completion  of  the  payment  of  the  purchase  price  and  interest 


THE  MERCHANT  MARINE  ACT  267 

shall  not  be  deferred  more  than  ten  years  after  the  making  of  the 
contract  of  sale),  such  vessels  as  it  shall,  after  careful  investigation, 
deem  unnecessary  to  the  promotion  and  maintenance  of  an  efficient 
American  merchant  marine;  but  no  such  sale  shall  be  made  unless 
the  board,  after  diligent  effort,  has  been  unable  to  sell,  in  accordance 
with  the  terms  and  conditions  of  section  5,  such  vessels  to  persons 
citizens  of  the  United  States,  and  has,  upon  an  affirmative  vote  of  not 
less  than  five  of  its  members,  spread  upon  the  minutes  of  the  board, 
determined  to  make  such  sale;  and  it  shall  make  as  a  part  of  its 
records  a  full  statement  of  its  reasons  for  making  such  sale.  De- 
ferred payments  of  purchase  price  of  vessels  under  this  section  shall 
bear  interest  at  the  rate  of  not  less  than  5>4  per  centum  per  annum, 
payable  semiannually. 

Sec.  7.  That  the  board  is  authorized  and  directed  to  investigate 
and  determine  as  promptly  as  possible  after  the  enactment  of  this 
Act  and  from  time  to  time  thereafter  what  steamship  lines  should  be 
established  and  put  in  operation  from  ports  in  the  United  States  or 
any  Territory,  District,  or  possession  thereof  to  such  world  and  do- 
mestic markets  as  in  its  judgment  are  desirable  for  the  promotion, 
development,  expansion,  and  maintenance  of  the  foreign  and  coast- 
wise trade  of  the  United  States  and  an  adequate  postal  service,  and 
to  determine  the  type,  size,  speed,  and  other  requirements  of  the  ves- 
sels to  be  employed  upon  such  lines  and  the  frequency  and  regularity 
of  their  sailings,  with  a  view  to  furnishing  adequate,  regular,  certain, 
and  permanent  service.  The  board  is  authorized  to  sell,  and  if  a 
satisfactory  sale  can  not  be  made,  to  charter  such  of  the  vessels  re- 
ferred to  in  section  4  of  this  Act  or  otherwise  acquired  by  the  board, 
as  will  meet  these  requirements  to  responsible  persons  who  are  citi- 
zens of  the  United  States  who  agree  to  establish  and  maintain  such 
lines  upon  such  terms  of  payment  and  other  conditions  as  the  board 
may  deem  just  and  necessary  to  secure  and  maintain  the  service  de- 
sired; and  if  any  such  steamship  line  is  deemed  desirable  and  neces- 
sary, and  if  no  such  citizen  can  be  secured  to  supply  such  service  by 
the  purchase  or  charter  of  vessels  on  terms  satisfactory  to  the  board, 
the  board  shall  operate  vessels  on  such  line  until  the  business  is  de- 
veloped so  that  such  vessels  may  be  sold  on  satisfactory  terms  and  the 
service  maintained,  or  unless  it  shall  appear  within  a  reasonable  time 
that  such  Hne  can  not  be  made  self-sustaining.  The  Postmaster  Gen- 
eral is  authorized,  notwithstanding  the  Act  entitled  "  An  Act  to  pro- 
vide for  ocean  mail  service  between  the  United  States  and  foreign 
ports,  and  to  promote  commerce,"  approved  March  3,  1891,  to  con- 
tract for  the  carrying  of  the  mails  over  such  lines  at  such  price  as 
may  be  agreed  upon  by  the  board  and  the  Postmaster  General: 
Provided,  That  preference  in  the  sale  or  assignment  of  vessels  for 
operation  on  such  steamship  lines  shall  be  given  to  persons  who  are 
citizens  of  the  United  States  who  have  the  support,  financial  and 
otherwise,  of  the  domestic  communities  primarily  interested  in  such 
lines  if  the  board  is  satisfied  of  the  ability  of  such  persons  to  main- 


268  APPENDICES 

tain  the  service  desired  and  proposed  to  be  maintained,  or  to  persons 
who  are  citizens  of  the  United  States  who  may  then  be  maintaining 
a  service  from  the  port  of  the  United  States  to  or  in  the  general  di- 
rection of  the  world  market  port  to  which-  the  board  has  determined 
that  such  service  should  be  established:  Provided  further,  That 
where  steamship  lines  and  regular  service  have  been  established  and 
are  being  'maintained  by  ships  of  the  board  at  the  time  of  the  enact- 
ment of  this  Act,  such  lines  and  service  shall  be  maintained  by  the 
board  until,  in  the  opinion  of  the  board,  the  maintenance  thereof  is 
unbusinesslike  and  against  the  public  interests:  And  provided  fur- 
ther, That  whenever  the  board  shall  determine,  as  provided  in  this 
Act,  that  trade  conditions  warrant  the  establishment  of  a  service  or 
additional  service  under  Government  administration  where  a  service 
is  already  being  given  by  persons,  citizens  of  the  United  States,  the 
rates  and  charges  for  such  Government  service  shall  not  be  less  than 
the  cost  thereof,  including  a  proper  interest  and  depreciation  charge 
on  the  value  of  Government  vessels  and  equipment  employed  therein. 

Sec.  8.  That  it  shall  be  the  duty  of  the  board,  in  cooperation  with 
the  Secretary  of  War,  with  the  object  of  promoting,  encouraging, 
and  developing  ports  and  transportation  facilities  in  connection  with 
water  commerce  over  which  it  has  jurisdiction,  to  investigate  terri- 
torial regions  and  zones  tributary  to  such  ports,  taJcing  into  consid^ 
eration  the  economies  of  transportation  by  rail,  water  and  highway 
and  the  natural  direction  of  the  flow  of  commerce ;  to  investigate  the 
causes  of  the  congestion  of  commerce  at  ports  and  the  remedies  ap- 
plicable thereto;  to  investigate  the  subject  of  water  terminals,  in- 
cluding the  necessary  docks,  warehouses,  apparatus,  equipment,  and 
appliances  in  connection  therewith,  with  a  view  to  devising  and  sug- 
gesting the  types  most  appropriate  for  different  locations  and  for 
the  most  expeditious  and  economical  transfer  or  interchange  of  pas- 
sengers or  property  between  carriers  by  water  and  carriers  by  rail ; 
to  advise  with  communities  regarding  the  appropriate  location  and 
plan  of  construction  of  wharves,  piers,  and  water  terminals;  to  inves- 
tigate the  practicability  ajid  advantages  of  harbor,  river,  and  port 
improvements  in  connection  with  foreign, and  coastwise  trade;  and 
to  investigate  any  other  matter  that  may  tend  to  promote  and  en- 
courage the  u&e  by  vessels  of  ports  adequate  to  care  for  the  freight 
which  would  naturajly  pass  through  such  ports:  Provided,  That  if 
after  such  investigation  the  board  shall  be  of  the  opinion  that  rates, 
charges,  rules,  or  regulations  of  common  carriers  by  rail  subject  to 
the  jurisdiction  of  the  Interstate  Commerce  Commission  are  detri- 
mental to  the  declared  object  of  this  section,  or  that  new  rates, 
charges,  rules,  or  regulations,  new  or  additional  port  terminal  facili- 
ties, or  affirmative  action  on  the  part  of  such  common  carriers  by  rail 
is  necessary  to  promote  the  objects  of  this  section,  the  board  may 
submit  its  findings  to  the  Interstate  Commerce  Commission  for  such 
action  as  such  commission  may  consider  proper  under  existing  law. 

Sec.  9.  That  if  the  terms  and  conditions  of  any  sale  of  a  vessel 


THE  MERCHANT  MARINE  ACT  269 

made  under  the  provisions  of  this  Act  include  deferred  payments  of 
the  purchase  price,  the  board  shall  require,  as  part  of  such  terms  and 
conditions,  that  the  purchaser  of  the  vessel  shall  keep  the  same  in- 
sured (a)  against  loss  or  damage  by  fire,  and  against  marine  risks  and 
disasters,  and  war  and  other  risks  if  the  board  so  specifies,  with  such 
insurance  companies,  associations  or  underwriters,  and  under  such 
forms  of  policies,  and  to  such  an  amount,  as  the  board  may  prescribe 
or  approve;  and  (b)  by  protection  and  indemnity  insurance  with  such 
insurance  companies,  associations,  or  underwriters  and  under  such 
forms  of  policies,  and  to  such  an  amount  as  the  board  may  prescribe 
or  approve.  The  insurance  required  to  be  carried  under  this  section 
shall  be  made  payable  to  the  board  and/or  to  the  parties  as  interest 
may  appear.  The  board  is  authorized  to  enter  into  any  agreement 
that  it  deems  wise  in  respect  to  the  payment  and/or  the  guarantee 
of  premiums  of  insurance. 

Sec.  10.  That  the  board  may  create  out  of  net  revenue  from  opera- 
tions and  sales,  and  maintain  and  administer,  a  separate  insurance 
fund,  which  it  may  use  to  insure  in  whole  or  in  part,  against  all 
hazards  commonly  covered  by  insurance  policies  in  such  cases,  any 
interest  of  the  United  States  (i)  in  any  vessel,  either  constructed 
or  in  process  of  construction,  and  (2)  in  any  plants  or  materials 
heretofore  or  hereafter  acquired  by  the  board  or  hereby  transferred 
to  the  board. 

Sec.  II.  That  during  a  period  of  five  years  from  the  enactment  of 
this  Act  the  board  may  annually  set  aside  out  of  the  revenues  from 
sales  and  operations  a  sum  not  exceeding  $25,000,000,  to  be  known 
as  its  construction  loan  fund,  to  be  used  in  aid  of  the  construction 
of  vessels  of  the  best  and  most  efficient  type  for  the  establishment 
and  maintenance  of  service  on  steamship  lines  deemed  desirable  and 
necessary  by  the  board,  and  such  vessels  shall  be  equipped  with  the 
most  modern,  the  most  efficient  and  the  most  economical  machinery 
and  commercial  appliances.  The  board  shall  use  such  fund  to  the 
extent  required  upon  such  terms  as  the  board  may  prescribe  to  aid 
persons,  citizens  of  the  United  States,  in  the  construction  by  them 
in  private  shipyards  in  the  United  States  of  the  foregoing  class  of 
vessels.  No  aid  shall  be  for  a  greater  sum  than  two-thirds  of  the 
cost  of  the  vessel  or  vessels  to  be  constructed,  and  the  board  shall 
require  such  security,  including  a  first  lien  upon  the  entire  interest 
in  the  vessel  or  vessels  so  constructed  as  it  shall  deem  necessary  to 
insure  the  repayment  of  such  sum  with  interest  thereon  and  the  main- 
tenance of  the  service  for  which  such  vessel  or  vessels  are  built. 

Sec.  12.  That  all  vessels  may  be  reconditioned  and  kept  in  suitable 
repair  and  until  sold  shall  be  managed  and  operated  by  the  board  or 
chartered  or  leased  by  it  on  such  terms  and  conditions  as  the  board 
shall  deem  wise  for  the  promotion  and  maintenance  of  an  efficient 
merchant  marine,  pursuant  to  the  policy  and  purposes  declared  in 
sections  i  and  5  of  this  Act;  and  the  United  States  Shipping  Board 
Emergency  Fleet  Corporation  shall  continue  in  existence  and  have 


270  APPENDICES 

authority  ta  operate  vessels,  unless  otherwise  directed  by  law,  until 
all  vessels  are  sold  in  accordance  with  the  provisions  of  this  Act,  the 
provision  in  section  ii  of  the  "  Shipping  Act,  1916,"  to  the  contrary 
notwithstanding. 

Sec.  13.  That  the  board  is  further  authorized  to  sell  all  property 
other  than,  vessels  transferred  to  it  under  section  4  upon  such  terms 
and  conditions  as  the  board  may  determine  and  prescribe. 

Sec.  14.  That  the  net  proceeds  derived  by  the  board  prior  to  July  i, 
1921,  from  any  activities  authorized  by  this  Act,  or  by  the  "  Shipping 
Act,  1916,"  or  by  the  Acts  specified  in  section  2  of  this  Act,  except 
such  an  amount  as  the  board  shall  deem  necessary  t-o  withhold  as 
operating  capital,  for  the  purposes  of  section  12  hereof,  and  for  the 
insurance  fund  authorized  in  section  10  hereof,  and  for  the  construc- 
tion loan  fund  authorized  in  section  11  hereof,  shall  be  covered  into 
the  Treasury  of  the  United  States  to  the  credit  of  the  board  and  may 
be  expended  by  it,  within  the  limits  of  the  amounts  heretofore  or 
hereafter  authorized,  for  the  construction,  requisitioning,  or  purchas- 
ing of  vessels.  After  July  i,  1921,  such  net  proceeds,  less  such  an 
amount  as  may  be  authorized  annually  by  Congress  to  be  withheld  as 
operating  capital,  and  less  such  sums  as  may  be  needed  for  such  in- 
surance and  construction  loan  funds,  shall  be  covered  into  the  Treas- 
ury of  the  United  States  as  miscellaneous  receipts.  The  board  shall, 
as  rapidly  as  it  deems  advisable,  withdraw  investment  of  Government 
funds  made  during  the  emergency  under  the  authority  conferred  by 
the  Acts  or  parts  of  Acts  repealed  by  section  2  of  this  Act  and  cover 
the  net  proceeds  thereof  into  the  Treasury  of  the  United  States  as 
miscellaneous  receipts. 

Sec.  15.  That  the  board  shall  not  require  payment  from  the  War 
Department  for  the  charter  hire  of  vessels  owned  by  the  United 
States  Government  furnished  by  the  board  from  July  i,  1918,  to 
June  30,  1919,  inclusive,  for  the  use  of  such  department. 

Sec.  16,  That  all  authorization  -to  purchase,  build,  requisition,  lease, 
exchange,  or  otherwise  acquire  houses,  buildings  or  land  under  the 
Act  entitled  "  An  Act  to  authorize  and  empower  the  United  States 
Shipping  Board  Emergency  Fleet  Corporation  to  purchase,  lease, 
requisition,  or  otherwise  acquire,  and  to  sell  or  otherwise  dispose  of 
improved  or  unimproved  lands,  houses,  buildings,  and  for  other  pur- 
poses," approved  March  i,  1918,  is  hereby  terminated:  Provided, 
however.  That  expenditures  may  be  made  under  said  Act  for  the  re- 
pair of  houses  and  buildings  already  constructed,  and  the  completion 
of  such  houses  or  buildings  as  have  heretofore  been  contracted  for 
or  are  under  construction,  if  considered  advisable,  and  the  board  is 
authorized  and  directed  to  dispose  of  all  such  properties  or  the  in- 
terest of  the  United  States  in  all  such  properties  at  as  early  a  date  as 
practicable,  consistent  with  good  business  and  the  best  interests  of  the 
United  States. 

Sec.  17.  That  the  board  is  authorized  and  directed  to  take  over  on 
January  i,  1921,  the  possession  and  control  of,  and  to  maintain  and 


THE  MERCHANT  MARINE  ACT  271 

develop,  all  docks,  piers,  warehouses,  wharves  and  terminal  equip- 
ment and  facilities,  including  all  leasehold  easements,  rights  of  way, 
riparian  rights  and  other  rights,  estates  and  interests  therein  or  ap- 
purtenant thereto,  acquired  by  the  President  by  or  under  the  Act 
entitled  "  An  Act  making  appropriations  to  supply  urgent  deficiencies 
in  appropriations  for  the  fiscal  year  ending  June  30,  1918,  and  prior 
fiscal  years,  on  account  of  war  expenses,  and  for  other  purposes," 
approved  March  28,  1918. 

The  possession  and  control  of  such  other  docks,  piers,  warehouses, 
wharves  and  terminal  equipment  and  facilities  or  parts  thereof,  in- 
cluding all  leasehold  easements,  rights  of  way,  riparian  rights  and 
other  rights,  estates  or  interests  therein  or  appurtenant  thereto  which 
were  acquired  by  the  War  Department  or  the  Navy  Department  for 
military  or  naval  purposes  during  the  war  emergency  may  be  trans- 
ferred by  the  President  to  the  board  whenever  the  President  deems 
such  transfer  to  be  for  the  best  interests  of  the  United  States. 

The  President  may  at  any  time  he  deems  it  necessary,  by  order 
setting  out  the  need  therefor  and  fixing  the  period  of  such  need,  per- 
mit or  transfer  the  possession  and  control  of  any  part  of  the  prop- 
erty taken  over  by  or  transferred  to  the  board  under  this  section  to 
the  War  Department  or  the  Navy  Department  for  their  needs,  and 
when  in  the  opinion  of  the  President  such  need  therefor  ceases  the 
possession  and  control  of  such  property  shall  revert  to  the  board. 
None  of  such  property  shall  be  sold  except  as  may  be  hereafter  pro- 
vided by  law. 

Sec.  18.  That  section  9  of  the  "  Shipping  Act,  1916,"  is  amended  to 
read  as  follows : 

"  Sec.  9.  That  any  vessel  purchased,  chartered,  or  leased  from  the 
board,  by  persons  who  are  citizens  of  the  United  States,  may  be 
registered  or  enrolled  and  licensed,  or  both  registered  and  enrolled 
and  licensed,  as  a  vessel  of  the  United  States  and  entitled  to  the 
benefits  and  privileges  appertaining  thereto :  Provided,  That  foreign- 
built  vessels  admitted  to  American  registry  or  enrollment  and  license 
under  this  Act,  and  vessels  owned  by  any  corporation  in  which  the 
United  States  is  a  stockholder,  and  vessels  sold,  leased,  or  chartered 
by  the  board  to  any  person  a  citizen  of  the  United  States,  as  pro- 
vided in  this  Act,  may  engage  in  the  coastwise  trade  of  the  United 
States  while  owned,  leased,  or  chartered  by  such  a  person. 

"  Every  vessel  purchased,  chartered,  or  leased  from  the  board  shall, 
unless  otherwise  authorized  by  the  board,  be  operated  only  under 
such  registry  or  enrollment  and  license.  Such  vessels  while  em- 
ployed solely  as  merchant  vessels  shall  be  subject  to  all  laws,  regu- 
lations, and  liabilities  governing  merchant  vessels,  whether  the  United 
States  be  interested  therein  as  owner,  in  whole  or  in  part,  or  hold 
any  mortgage,  lien,  or  other  interest  therein. 

"  It  shall  be  unlawful  to  sell,  transfer  or  mortgage,  or,  except 
under  regulations  prescribed  by  the  board,  to  charter,  any  vessel  pur- 
chased from  the  board  or  documented  under  the  laws  of  the  United 


272  APPENDICES 

States  to  any  person  not  a  citizen  of  the  United  States,  or  to  put  the 
same  under  a  foreign  registry  or  flag,  without  first  obtaining  the 
board's  approval. 

"  Any  vessel  chartered,  sold,  transferred  or  mortgaged  to  a  person 
not  a  citizen  of  the  United  States  or  placed  under  a  foreign  registry 
or  flag,  or  operated,  in  violation  of  any  provision  of  this  section  shall 
be  forfeited  to  the  United  States,  and  whoever  violates  any  provision 
of  this  section  shall  be  guilty  of  a  misdemeanor  and  subject  to  a  fine 
of  not  more  than  $5,000,  or  to  imprisonment  for  not  more  than  five 
years,  or  both." 

Sec.  19.  (i)  The  board  is  authorized  and  directed  in  aid  of  the 
accomplishment  of  the  purposes  of  this  Act 

(a)  To  make  all  necessary  rules  and  regulations  to  carry  out  the 
provisions  of  this  Act; 

(b)  To  make  rules  and  regulations  affecting  shipping  in  the  for- 
eign trade  not  in  conflict  with  law  in  order  to  adjust  or  meet  general 
or  special  conditions  unfavorable  to  shipping  in  the  foreign  trade, 
whether  in  any  particular  trade  or  upon  any  particular  route  or  in 
commerce  generally  and  which  arise  out  of  or  result  from  foreign 
laws,  rules,  or  regulations  or  from  competitive  methods  or  practices 
employed  by  owners,  operators,  agents,  or  masters  of  vessels  of  a 
foreign  country;  and 

(c)  To  request  the  head  of  any  department,  board,  bureau,  or 
agency  of  the  Government  to  suspend,  modify,  or  annul  rules  or  regu- 
lations which  have  been  established  by  such  department,  board, 
bureau,  or  agency,  or  to  make  new  rules  or  regulations  affecting 
shipping  in  the  foreign  trade  other  than  such  rules  or  regulations 
relating  to  the  Public  Health  Service,  the  Consular  Service,  and  the 
Steamboat  Inspection  Service. 

(2)  No  rule  or  regulation  shall  hereafter  be  established  by  any 
department,  board,  bureau,  or  agency  of  the  Government  which  affect 
shipping  in  the  foreign  trade,  except  rules  or  regulations  affecting  the 
Public  Health  Service,  the  Consular  Service,  and  the  Steamboat  In- 
spection Service,  until  such  rule  or  regulation  has  been  submitted  to 
the  board  for  its  approval  and  final  action  has  been  taken  thereon  by 
the  board  or  the  President. 

(3)  Whenever  the  head  of  any  department,  board,  bureau,  or 
agency  of  the  Government  refuses  to  suspend,  modify,  or  annul  any 
rule  or  regulation,  or  make  a  new  rule  or  regulation  upon  request  of 
the  board,  as  provided  in  subdivision  (c)  of  paragraph  (i)  of  this 
section,  or  objects  to  the  decision  of  the  board  in  respect  to  the 
approval  of  any  rule  or  regulation,  as  provided  in  paragraph  (2)  of 
this  section,  either  the  board  or  the  head  of  the  department,  board, 
bureau,  or  agency  which  has  established  or  is  attempting  to  establish 
the  rule  or  regulation  in  question  may  submit  the  facts  to  the  Presi- 
dent, who  is  hereby  authorized  to  establish  or  suspend,  modify,  or 
annul  such  rule  or  regulation. 

(4)  No  rule  or  regulation  shall  be  established  which  in  any  manner 


THE  MERCHANT  MARINE  ACT  273 

gives  vessels  owned  by  the  United  States  any  preference  or  favor 
over  those  vessels  documented  under  the  laws  of  the  United  States 
and  owned  by  persons  who  are  citizens  of  the  United  States. 

Sec.  20.  (i)  That  section  14  of  the  Shipping  Act,  1916,  as 
amended,  is  amended  to  read  as  follows: 

"  Sec.  14.  That  no  common  carrier  by  water  shall,  directly  or  in- 
directly, in  respect  to  the  transportation  by  water  of  passengers  or 
property  between  a  port  of  a  State,  Territory,  District,  or  possession 
of  the  United  States  and  any  other  such  port  or  a  port  of  a  foreign 
country, — 

"  First.  Pay,  or  allow,  or  enter  into  any  combination,  agreement, 
or  understanding,  express  or  implied,  to  pay  or  allow,  a  deferred  re- 
bate to  any  shipper.  The  term  '  deferred  rebate  '  in  this  Act  means 
a  return  of  any  portion  of  the  freight  money  by  a  carrier  to  any  ship- 
per as  a  consideration  for  the  giving  of  all  or  any  portion  of  his  ship- 
ments to  the  same  or  any  other  carrier,  or  for  any  other  purpose,  the 
payment  of  which  is  deferred  beyond  the  completion  of  the  service 
for  which  it  is  paid,  and  is  made  only  if,  during  both  the  period  for 
which  computed  and  the  period  of  deferment,  the  shipper  has  com- 
plied with  the  terms  of  the  rebate  agreement  or  arrangement. 

"  Second.  Use  a  fighting  ship  either  separately  or  in  conjunction 
with  any  other  carrier,  through  agreement  or  otherwise.  The  term 
'  fighting  ship  '  in  this  Act  means  a  vessel  used  in  a  particular  trade 
by  a  carrier  or  group  of  carriers  for  the  purpose  of  excluding,  pre- 
venting or  reducing  competition  by  driving  another  carrier  out  of  said 
trade. 

"  Third.  Retaliate  against  any  shipper  by  refusing,  or  threatening 
to  refuse,  space  accommodations  when  such  are  available,  or  resort  to 
other  discriminating  or  unfair  methods,  because  such  shipper  has 
patronized  any  other  carrier  or  has  filed  a  complaint  charging  unfair 
treatment,  or  for  any  other  reason. 

"  Fourth.  Make  any  unfair  or  unjustly  discriminatory  contract 
with  any  shipper  based  on  the  volume  of  freight  offered,  or  unfairly 
treat  or  unjustly  discriminate  against  any  shipper  in  the  matter  of 

(a)  cargo  space  accommodations  or  other  facilities,  due  regard  being 
had  for  the  proper  loading  of  the  vessel  and  the  available  tonnage; 

(b)  the  loading  and  landing  of  freight  in  proper  condition;  or   (c) 
the  adjustment  and  settlement  of  claims. 

"  Any  carrier  who  violates  any  provision  of  this  section  shall  be 
guilty  of  a  misdemeanor  punishable  by  a  fine  of  not  more  than 
$25,000  for  each  offense." 

(2)  The  Shipping  Act,  1916,  as  amended,  is  amended  by  inserting 
after  section  14  a  new  section  to  read  as  follows: 

"  Sec.  14a.  The  board  upon  its  own  initiative  may,  or  upon  com- 
plaint shall,  after  due  notice  to  all  parties  in  interest  and  hearing, 
determine  whether  any  person,  not  a  citizen  of  the  United  States  and 
engaged  in  transportation  by  water  of  passengers  or  property  — 

"(i)   Has  violated  any  provision  of  section  14,  or 


274  APPENDICES 

"(2)  Is  a  party  to  any  combination,  agreement,  or  understanding, 
express  or  implied,  that  involves  in  respect  to  transportation  of  pas- 
sengers or  property  between  foreign  ports,  deferred  rebates  or  any 
other  unfair  practice  designated  in  section  14,  and  that  excludes  from 
admission  upon  equal  terms  with  all  other  parties  thereto,  a  common 
carrier  by  water  which  is  a  citizen  of  the  United  States  and  which 
has  applied  for  such  admission. 

"  If  the  board  determines  that  any  such  person  has  violated  any 
such  provision  or  is  a  party  to  any  such  combination,  agreement,  or 
understanding,  the  board  shall  thereupon  certify  such  fact  to  the 
Secretary  of  Commerce.  The  Secretary  shall  thereafter  refuse  such 
person  the  right  of  entry  for  any  ship  owned  or  operated  by  him  or 
by  any  carrier  directly  or  indirectly  controlled  by  him,  into  any  port 
of  the  United  States,  or  any  Territory,  District,  or  possession  thereof, 
until  the  board  certifies  that  the  violation  has  ceased  or  such  combina- 
tion, agreement,  or  understanding  has  been  terminated." 

Sec.  21.  That  from  and  after  February  i,  1922,  the  coastwise  laws 
of  the  United  States  shall  extend  to  the  island  Territories  and  pos- 
sessions of  the  United  States  not  now  covered  thereby,  and  the  board 
is  directed  prior  to  the  expiration  of  such  year  to  have  established 
adequate  steamship  service  at  reasonable  rates  to  accommodate  the 
commerce  and  the  passenger  travel  of  said  islands  and  to  maintain 
and  operate  such  service  until  it  can  be  taken  over  and  operated  and 
maintained  upon  satisfactory  terms  by  private  capital  and  enterprise : 
Provided,  That  if  adequate  shipping  service  is  not  established  by 
February  i,  1922,  the  President  shall  extend  the  period  herein  al- 
lowed for  the  establishment  of  such  service  in  the  case  of  any  island 
Territory  or  possession  for  such  time  as  may  be  necessary  for  the 
establishment  of  adequate  shipping  facilities  therefor:  Provided 
further,  That  until  Congress  shall  have  authorized  the  registry  as 
vessels  of  the  United  States  of  vessels  owned  in  the  Philippine  Is- 
lands, the  Government  of  the  Philippine  Islands  is  hereby  authorized 
to  adopt,  from  time  to  time,  and  enforce  regulations  governing  the 
transportation  of  merchandise  and  passengers  between  ports  or  places 
in  the  Philippine  Archipelago:  And  provided  further,  That  the  fore- 
going provisions  of  this  section  shall  not  take  effect  with  reference  to 
the  Philippine  Islands  until  the  President  of  the  United  States  after 
a  full  investigation  of  the  local  needs  and  conditions  shall,  by  procla- 
mation, declare  that  an  adequate  shipping  service  has  been  established 
as  herein  provided  and  fix  a  date  for  the  going  into  effect  of  the  same. 

Sec.  22.  That  the  Act  entitled  "  An  Act  giving  the  United  States 
Shipping  Board  power  to  suspend  present  provisions  of  law  and  per- 
mit vessels  of  foreign  registry  and  foreign-built  vessels  admitted  to 
American  registry  under  the  Act  of  August  18,  1914,  to  engage  in  the 
coastwise  trade  during  the  present  war  and  for  a  period  of  one  hun- 
dred and  twenty  days  thereafter,  except  the  coastwise  trade  with 
Alaska,"  approved  October  6,  1917,  is  hereby  repealed:  Provided, 
That  all  foreign-built  vessels  admitted  to  American  registry,  owned 


THE  MERCHANT  MARINE  ACT  275 

on  February  i,  1920,  by  persons  citizens  of  the  United  States,  and  all 
foreign-built  vessels  owned  by  the  United  States  at  the  time  of  the  en- 
actment of  this  Act,  when  sold  and  owned  by  persons  citizens  of  the 
United  States,  may  engage  in  the  coastwise  trade  so  long  as  they  con- 
tinue in  such  ownership,  subject  to  the  rules  and  regulations  of  such 
trade:  Provided,  That  the  board  is  authorized  to  issue  permits  for 
the  carrying  of  passengers  in  foreign  ships  if  it  deems  it  necessary 
so  to  do,  operating  between  the  Territory  of  Hawaii  and  the  Pacific 
Coast  up  to  February  i,  1922. 

Sec.  23.  That  the  owner  of  a  vessel  documented  under  the  laws  of 
the  United  States  and  operated  in  foreign  trade  shall,  for  each  of  the 
ten  taxable  years  while  so  operated,  beginning  with  the  first  taxable 
year  ending  after  the  enactment  of  this  Act,  be  allowed  as  a  deduc- 
tion for  the  purpose  of  ascertaining  his  net  income  subject  to  the 
war-profits  and  excess-profits  taxes  imposed  by  Title  III  of  the  Reve- 
nue Act  of  1918  an  amount  equivalent  to  the  net  earnings  of  such 
vessel  during  such  taxable  year,  determined  in  accordance  with  rules 
and  regulations  to  be  made  by  the  board :  Provided,  That  such  owner 
shall  not  be  entitled  to  such  deduction  unless  during  such  taxable 
year  he  invested,  or  set  aside  under  rules  and  regulations  to  be  made 
by  the  board  in  a  trust  fund  for  investment,  in  the  building  in  ship- 
yards in  the  United  States  of  new  vessels  of  a  type  and  kind  ap- 
proved by  the  board,  an  amount,  to  be  determined  by  the  Secretary 
of  the  Treasury  and  certified  by  him  to  the  board,  equivalent  to  the 
war-profits  and  excess-profits  taxes  that  would  have  been  payable 
by  such  owner  on  account  of  the  net  earnings  of  such  vessels  but  for 
the  deduction  allowed  under  the  provisions  of  this  section :  Provided 
further,  That  at  least  two-thirds  of  the  cost  of  any  vessel  constructed 
under  this  paragraph  shall  be  paid  for  out  of  the  ordinary  funds  or 
capital  of  the  person  having  such  vessel  constructed. 

That  during  the  period  of  ten  years  from  the  enactment  of  this 
Act  any  person  a  citizen  of  the  United  States  who  may  sell  a  vessel 
documented  under  the  laws  of  the  United  States  and  built  prior  to 
January  1,  1914,  shall  be  exempt  from  all  income  taxes  that  would 
be  payable  upon  any  of  the  proceeds  of  such  sale  under  Title  I,  Title 
II,  and  Title  III  of  the  Revenue  Act  of  1918  if  the  entire  proceeds 
thereof  shall  be  invested  in  the  building  of  new  ships  in  American 
shipyards,  such  ships  to  be  documented  under  the  laws  of  the  United 
States  and  to  be  of  a  type  approved  by  the  board. 

Sec.  24.  That  all  mails  of  the  United  States  shipped  or  carried  on 
vessels  shall,  if  practicable,  be  shipped  or  carried  on  American-built 
vessels  documented  under  the  laws  of  the  United  States.  No  con- 
tract hereafter  made  with  the  Postmaster  General  for  carrying  mails 
on  vessels  so  built  and  documented  shall  be  assigned  or  sublet,  and 
no  mails  covered  by  such  contract  shall  be  carried  on  any  vessel  not 
so  built  and  documented.  No  money  shall  be  paid  out  of  the  Treasury 
of  the  United  States  on  or  in  relation  to  any  such  contract  for  carry- 
ing mails  on  vessels  so  built  and  documented  when  such  contract  has 


276  APPENDICES 

been  assigned  or  sublet  or  when  mails  covered  by  such  contract  are 
in  violation  of  the  terms  thereof  carried  on  any  vessel  not  so  built 
and  documented.  The  board  and  the  Postmaster  General,  in  aid  of 
the  development  of  a  merchant  marine  adequate  to  provide  for  the 
maintenance  and  expansion  of  the  foreign  or  coastwise  trade  of  the 
United  States  and  of  a  satisfactory  postal  service  in  connection  there- 
with, shall  from  time  to  time  determine  the  just  and  reasonable  rate 
of  compensation  to  be  paid  for  such  service,  and  the  Postmaster 
General  is  hereby  authorized  to  enter  into  contracts  within  the  limits 
of  appropriations  made  therefor  by  Congress  to  pay  for  the  carrying 
of  such  mails  in  such  vessels  at  such  rate.  Nothing  herein  shall  be 
affected  by  the  Act  entitled  "  An  Act  to  provide  for  ocean  mail  serv- 
ice between  the  United  States  and  foreign  ports,  and  to  promote  com- 
merce," approved  March  3,  1891. 

Sec.  25.  That  for  the  classification  of  vessels  owned  by  the  United 
States,  and  for  such  other  purposes  in  connection  therewith  as  are 
the  proper  functions  of  a  classification  bureau,  all  departments, 
boards,  bureaus,  and  commissions  of  the  Government  are  hereby  di- 
rected to  recognize  the  American  Bureau, of  Shipping  as  their  agency 
so  long  as  the  American  Bureau  of  Shipping  continues  to  be  main- 
tained as  an  organization  which  has  no  capital  stock  and  pays  no 
dividends:  Provided,  That  the  Secretary  of  Commerce  and  the 
chairman  of  the  board  shall  each  appoint  one  representative  who  shall 
represent  the  Government  upon  the  executive  committee  of  the  Amer- 
ican Bureau  of  Shipping,  and  the  bureau  shall  agree  that  these  repre- 
sentatives shall  be  accepted  by  them  as  active  members  of  such  com- 
mittee. Such  representatives  of  the  Government  shall  serve  without 
any  compensation,  except  necessary  traveling  expenses :  Provided 
further.  That  the  official  list  of  merchant  vessels  published  by  the 
Government  shall  hereafter  contain  a  notation  clearly  indicating  all 
vessels  classed  by  the  American  Bureau  of  Shipping. 

Sfx.  26.  That  cargo  vessels  documented  under  the  laws  of  the 
United  States  may  carry  not  to  exceed  sixteen  persons  in  addition 
to  the  crew  between  any  ports  or  places  in  the  United  States  or  its 
Districts,  Territories,  or  possessions,  or  between  any  such  port  or 
place  and  any  foreign  port,  or  from  any  foreign  port  to  another  for- 
eign port,  and  such  vessels  shall  not  be  held  to  be  "  passenger  vessels  " 
or  "  vessels  carrying  passengers  "  within  the  meaning  of  the  inspec- 
tion laws  and  the  rules  and  regulations  thereunder:  Provided,  That 
nothing  herein  shall  be  taken  to  exempt  such  vessels  from  the  laws, 
rules,  and  regulations  respecting  life-saving  equipment:  Provided 
further,  That  when  any  such  vessel  carries  persons  other  than  the 
crew  as  herein  provided  for,  the  owner,  agent,  or  master  of  the  vessel 
shall  first  notify  such  persons  of  the  presence  on  board  of  any  dan- 
gerous articles,  as  defined  by  law,  or  of  any  other  condition  or  cir- 
cumstances which  would  constitute  a  risk  of  safety  for  passenger  or 
crew. 

The  privilege  bestowed  by  this  section  on  vessels  of  the  United 


THE  MERCHANT  MARINE  ACT  277 

States  shall  be  extended  insofar  as  the  foreign  trade  is  concerned  to 
the  cargo  vessels  of  any  nation  which  allows  the  like  privilege  to 
cargo  vessels  of  the  United  States  in  trades  not  restricted  to  vessels 
under  its  own  flag. 

Failure  on  the  part  of  the  owner,  agent,  or  master  of  the  vessel  to 
give  such  notice  shall  subject  the  vessel  to  a  penalty  of  $500,  which 
may  be  mitigated  or  remitted  by  the  Secretary  of  Commerce  upon  a 
proper  representation  of  the  facts. 

Sec.  27.  That  no  merchandise  shall  be  transported  by  water,  or 
by  land  and  water,  on  penalty  of  forfeiture  thereof,  between  points  in 
the  United  States,  including  Districts,  Territories,  and  possessions 
thereof  embraced  within  the  coastwise  laws,  either  directly  or  via  a 
foreign  port,  or  for  any  part  of  the  transportation,  in  any  other  vessel 
than  a  vessel  built  in  and  documented  under  the  laws  of  the  United 
States  and  owned  by  persons  who  are  citizens  of  the  United  States, 
or  vessels  to  which  the  privilege  of  engaging  in  the  coastwise  trade 
is  extended  by  sections  18  or  22  of  this  Act:  Provided,  That  this 
section  shall  not  apply  to  merchandise  transported  between  points 
within  the  continental  United  States,  excluding  Alaska,  over  through 
routes  heretofore  or  hereafter  recognized  by  the  Interstate  Commerce 
Commission  for  which  routes  rate  tariffs  have  been  or  shall  here- 
after be  filed  with  said  commission  when  such  routes  are  in  part  over 
Canadian  rail  lines  and  their  own  or  other  connecting  water  facilities : 
Provided  further.  That  this  section  shall  not  become  effective  upon 
the  Yukon  river  until  the  Alaska  Railroad  shall  be  completed  and 
the  Shipping  Board  shall  find  that  proper  facilities  will  be  furnished 
for  transportation  by  persons  citizens  of  the  United  States  for  prop- 
erly handling  the  traffic. 

Sec.  28.  That  no  common  carrier  shall  charge,  collect,  or  receive, 
for  transportation  subject  to  the  Interstate  Commerce  Act  of  persons 
or  property,  under  any  joint  rate,  fare,  or  charge,  or  under  any  ex- 
port, import,  or  other  proportional  rate,  fare,  or  charge,  which  is  based 
in  whole,  or  in  part  on  the  fact  that  the  persons  or  property  affected 
thereby  is  to  be  transported  to,  or  has  been  transported  from,  any 
port  in  a  possession  or  dependency  of  the  United  States,  or  in  a  for- 
eign country,  by  a  carrier  by  water  in  foreign  commerce,  any  lower 
rate,  fare,  or  charge  than  that  charged,  collected,  or  received  by  it 
for  the  transportation  of  persons,  or  of  a  like  kind  of  property,  for 
the  same  distance,  in  the  same  direction,  and  over  the  same  route, 
in  connection  with  commerce  wholly  within  the  United  States,  unless 
the  vessel  so  transporting  such  persons  or  property  is,  or  unless  it  was 
at  the  time  of  such  transportation  by  water,  documented  under  the 
laws  of  the  United  States.  Whenever  the  board  is  of  the  opinion, 
however,  that  adequate  shipping  facilities  to  or  from  any  port  in  a 
possession  or  dependency  of  the  United  States  or  a  foreign  country 
are  not  afforded  by  vessels  so  documented,  it  shall  certify  this  fact 
to  the  Interstate  Commerce  Commission,  and  the  commission  may,  by 
order,  suspend  the  operation  of  the  provisions  of  this  section  with 


278  APPENDICES 

respect  to  the  rates,  fares,  and  charges  for  the  transportation  by  rail 
of  persons  and  property  transported  from,  or  to  be  transported,  to 
such  ports,  for  such  length  of  time  and  under  such  terms  and  con- 
ditions as  it  may  prescribe  in  such  order,  or  in  any  order  supplemental 
thereto.  Such  suspension  of  operation  of  the  provisions  of  this  sec- 
tion may  be  terminated  by  order  of  the  commission  whenever  the 
board  is  of  the  opinion  that  adequate  shipping  facilities  by  such  ves- 
sels to  such  ports  are  afforded  and  shall  so  certify  to  the  commission. 

Sec.  29.  (a)  That  whenever  used  in  this  section  — 

(i)  The  term  "  association  "  means  any  association,  exchange,  pool, 
combination,  or  other  arrangement  for  concerted  action;  and 

(2)  The  term  "marine  insurance  companies"  means  any  persons, 
companies,  or  associations,  authorized  to  write  marine  insurance  or 
reinsurance  under  the  laws  of  the  United  States  or  of  a  State,  Terri- 
tory, District,  or  possession  thereof. 

(b)  Nothing  contained  in  the  "  antitrust  laws  "  as  designated  in 
section  i  of  the  Act  entitled  "  An  Act  to  supplement  existing  laws 
against  unlawful  restraints  and  monopolies,  and  for  other  purposes," 
approved  October  15,  1914,  shall  be  construed  as  declaring  illegal  an 
association  entered  into  by  marine  insurance  companies  for  the  fol- 
lowing purposes :  To  transact  a  marine  insurance  and  reinsurance 
business  in  the  United  States  and  in  foreign  countries  and  to  reinsure 
or  otherwise  apportion  among  its  membership  the  risks  undertaken 
by  such  association  or  any  of  the  component  members. 

Sec.  30.  Subsection  A.  That  this  section  may  be  cited  as  the  "  Ship 
Mortgage  Act,  1920." 

DEFINITIONS. 

Subsection  B.  When  used  in  this  section  — 

(i)  The  term  "document"  includes  registry  and  enrollment  and 
license ; 

(2)  The  term  "documented"  means  registered  or  enrolled  or  li- 
censed under  the  laws  of  the  United  States,  whether  permanently  or 
temporarily ; 

(3)  The  term  "  port  of  documentation  "  means  the  port  at  which 
the  vessel  is  documented,  in  accordance  with  law; 

(4)  The  term  "  vessel  of  the  United  States "  means  any  vessel 
documented  under  the  laws  of  the  United  States  and  such  vessel  shall 
be  held  to  continue  to  be  so  documented  until  its  documents  are  sur- 
rendered with  the  approval  of  the  board;  and 

(5)  The  term  "mortgagee,"  in  the  case  of  a  mortgage  involving  a 
trust  deed  and  a  bond  issue  thereunder,  means  the  trustee  designated 
in  such  deed. 

RECORDING    OF    SALES,    CONVEYANCES,    AND    MORTGAGES    OF    VESSELS    OF 

THE    UNITED    STATES. 

Subsection  C.  (a)  No  sale,  conveyance,  or  mortgage  which,  at  the 
time  such  sale,  conveyance,  or  mortgage  is  made,  includes  a  vessel  of 


THE  MERCHANT  MARINE  ACT  279 

the  United  States,  or  any  portion  thereof,  as  the  whole  or  any  part  of 
the  property  sold,  conveyed,  or  mortgaged  shall  be  valid,  in  respect 
to  such  vessel,  against  any  person  other  than  the  grantor  or  mort- 
gagor, his  heir  or  devisee,  and  a  person  having  actual  notice  thereof, 
until  such  bill  of  sale,  conveyance,  or  mortgage  is  recorded  in  the 
office  of  the  collector  of  customs  of  the  port  of  documentation  of 
such  vessel,  as  provided  in  subdivision  (b)  of  this  subsection. 

(b)  Such  collector  of  customs  shall  record  bills  of  sale,  convey- 
ances, and  mortgages,  delivered  to  him,  in  the  order  of  their  reception, 
in  books  to  be  kept  for  that  purpose  and  indexed  to  show  — 

(i)  The  name  of  the  vessel; 

(2)  The  names  of  the  parties  to  the  sale,  conveyance,  or  mortgage; 

(3)  The  time  and  date  of  reception  of  the  instrument; 

(4)  The  interest  in  the  vessel  so  sold,  conveyed,  or  mortgaged;  and 

(5)  The  amount  and  date  of  maturity  of  the  mortgage. 
Subsection  D.  (a)  A  valid  mortgage  which,  at  the  time  it  is  made 

includes  the  whole  of  any  vessel  of  the  United  States  of  200  gross  tons 
and  upwards,  shall  in  addition  have,  in  respect  to  such  vessel  and  as 
of  the  date  of  the  compliance  with  all  the  provisions  of  this  subdi- 
vision, the  preferred  status  given  by  the  provisions  of  subsection 
M,  if  — 

(i)  The  mortgage  is  indorsed  upon  the  vessel's  documents  in  ac- 
cordance with  the  provisions  of  this  section ; 

(2)  The  mortgage  is  recorded  as  provided  in  subsection  C,  together 
with  the  time  and  date  when  the  mortgage  is  so  indorsed; 

(3)  An  affidavit  is  filed  with  the  record  of  such  mortgage  to  the 
effect  that  the  mortgage  is  made  in  good  faith  and  without  any  design 
to  hinder,  delay,  or  defraud  any  existing  or  future  creditor  of  the 
mortgagor  or  any  lienor  of  the  mortgaged  vessel ; 

(4)  The  mortgage  does  not  stipulate  that  the  mortgagee  waives 
the  preferred  status  thereof;  and 

(5)  The  mortgagee  is  a  citizen  of  the  United  States. 

(b)  Any  mortgage  which  complies  in  respect  to  any  vessel  with  the 
conditions  enumerated  in  this  subsection  is  hereafter  in  this  section 
called  a  "  preferred  mortgage  "  as  to  such  vessel. 

(c)  There  shall  be  indorsed  upon  the  documents  of  a  vessel  covered 
by  a  preferred  mortgage  — 

( 1 )  The  name  of  the  mortgagor  and  mortgagee ; 

(2)  The  time  and  date  the  indorsement  is  made ; 

(3)  The  amount  and  date  of  maturity  of  the  mortgage;  and 

(4)  Any  amount  required  to  be  indorsed  by  the  provisions  of 
subdivision     (e)  or  (f)  of  this  subsection. 

(d)  Such  indorsement  shall  be  made  (i)  by  the  collector  of  cus- 
toms of  the  port  of  documentation  of  the  mortgaged  vessel,  or  (2)  by 
the  collector  of  customs  of  any  port  in  which  the  vessel  is  found,  if 
such  collector  is  directed  to  make  the  indorsement  by  the  collector  of 
customs  of  the  port  of  documentation;  and  no  clearance  shall  be 
issued  to  the  vessel  until  such  indorsement  is  made.     The  collector  of 


28o  APPENDICES 

customs  of  the  port  of  documentation  shall  give  such  direction  by 
wire  or  letter  at  the  request  of  the  mortgagee  and  upon  the  tender  of 
the  cost  of  communication  of  such  direction.  Whenever  any  new 
document  is  issued  for  the  vessel,  such  indorsement  shall  be  trans- 
ferred to  and  indorsed  upon  the  new  document  by  the  collector  of 
customs. 

(e)  A  mortgage  which  includes  property  other  than  a  vessel  shall 
not  be  held  a  preferred  mortgage  unless  the  mortgage  provides  for  the 
separate  discharge  of  such  property  by  the  payment  of  a  specified 
portion  of  the  mortgage  indebtedness.  If  a  preferred  mortgage  so 
provides  for  the  separate  discharge,  the  amount  of  the  portion  of  such 
payment  shall  be  indorsed  upon  the  documents  of  the  vessel. 

(f)  If  a  preferred  mortgage  includes  more  than  one  vessel  and 
provides  for  the  separate  discharge  of  each  vessel  by  the  payment  of  a 
portion  of  the  mortgage  indebtedness,  the  amount  of  such  portion  of 
such  payment  shall  be  indorsed  upon  the  documents  of  the  vessel.  In 
case  such  mortgage  does  not  provide  for  the  separate  discharge  of  a 
vessel  and  the  vessel  is  to  be  sold  upon  the  order  of  a  district  court  of 
the  United  States  in  a  suit  in  rem  in  admiralty,  the  court  shall  deter- 
mine the  portion  of  the  mortgage  indebtedness  increased  by  20  per 
centum  (i)  which,  in  the  opinion  of  the  court,  the  approximate  value 
of  the  vessel  bears  to  the  approximate  value  of  all  the  vessels  covered 
by  the  mortgage,  and  (2)  upon  the  payment  of  which  the  vessel  shall 
be  discharged  from  the  mortgage. 

Subsection  E.  The  collector  of  customs  upon  the  recording  of  a 
preferred  mortgage  shall  deliver  two  certified  copies  thereof  to  the 
mortgagor  who  shall  place,  and  use  due  diligence  to  retain,  one  copy 
on  board  the  mortgaged  vessel  and  cause  such  copy  and  the  documents 
of  the  vessel  to  be  exhibited  by  the  master  to  any  person  having 
business  with  the  vessel,  which  may  give  rise  to  a  maritime  lien 
upon  the  vessel  or  to  the  sale,  conveyance,  or  mortgage  thereof. 
The  master  of  the  vessel  shall,  upon  the  request  of  any  such  person, 
exhibit  to  him  the  documents  of  the  vessel  and  the  copy  of  any  pre- 
ferred mortgage  of  the  vessel  placed  on  board  thereof. 

Subsection  F.  The  mortgagor  (i)  shall,  upon  request  of  the  mort- 
gagee, disclose  in  writing  to  him  prior  to  the  execution  of  any  pre- 
ferred mortgage,  the  existence  of  any  maritime  lien,  prior  mort- 
gage, or  other  obligation  or  liability  upon  the  vessel  to  be  mortgaged, 
that  is  known  to  the  mortgagor,  and  (2),  without  the  consent  of  the 
mortgagee,  shall  not  incur,  after  the  execution  of  such  mortgage  and 
before  the  mortgagee  has  had  a  reasonable  time  in  which  to  record 
the  mortgage  and  have  indorsements  in  respect  thereto  made  upon 
the  documents  of  the  vessel,  any  contractual  obligation  creating  a 
lien  upon  the  vessel  other  than  a  lien  for  wages  of  stevedores  when 
employed  directly  by  the  owner,  operator,  master,  ship's  husband, 
or  agent  of  the  vessel,  for  wages  of  the  crew  of  the  vessel,  for  gen- 
eral average,  or  for  salvage,  including  contract  salvage,  in  respect  to 
the  vessel. 


THE  MERCHANT  MARINE  ACT  281 

Subsection  G.  (a)  The  collector  of  customs  of  the  port  of  docu- 
mentation shall,  upon  the  request  of  any  person,  record  notice  of 
his  claim  of  a  lien  upon  a  vessel  covered  by  a  preferred  mortgage, 
together  with  the  nature,  date  of  creation,  and  amount  of  the  lien, 
and  the  name  and  address  of  the  person.  Any  person  who  has  caused 
notice  of  his  claim  of  lien  to  be  so  recorded  shall,  upon  a  discharge 
in  whole  or  in  part  of  the  indebtedness,  forthwith  file  with  the  col- 
lector of  customs  a  certificate  of  such  discharge.  The  collector  of 
customs  shall  thereupon  record  the  certificate. 

(b)  The  mortgagor,  upon  a  discharge  in  whole  or  in  part  of  the 
mortgage  indebtedness,  shall  forthwith  file  with  the  collector  of 
customs  for  the  port  of  documentation  of  the  vessel,  a  certificate  of 
such  discharge.  Such  collector  of  customs  shall  thereupon  record 
the  certificate.  In  case  of  a  vessel  covered  by  a  preferred  mortgage, 
the  collector  of  customs  at  the  port  of  documentation  shall  (i)  in- 
dorse upon  the  documents  of  the  vessel,  or  direct  the  collector  of 
customs  at  any  port  in  which  the  vessel  is  found,  to  so  indorse,  the 
fact  of  such  discharge,  and  (2)  shall  deny  clearance  to  the  vessel 
until  such  indorsement  is  made. 

Subsection  H.  (a)  No  bill  of  sale,  conveyance,  or  mortgage  shall 
be  recorded  unless  it  states  the  interest  of  the  grantor  or  mortgagor 
in  the  vessel,  and  the  interest  so  sold,  conveyed,  or  mortgaged. 

(b)  No  bill  of  sale,  conveyance,  mortgage,  notice  of  claim  of  lien, 
or  certificate  of  discharge  thereof,  shall  be  recorded  unless  previously 
acknowledged  before  a  notary  public  or  other  officer  authorized  by 
a  law  of  the  United  States,  or  of  a  State,  Territory,  District,  or  pos- 
session thereof,  to  take  acknowledgment  of  deeds. 

(c)  In  case  of  a  change  in  the  port  of  documentation  of  a  vessel 
of  the  United  States,  no  bill  of  sale,  conveyance,  or  mortgage  shall 
be  recorded  at  the  new  port  of  documentation  unless  there  is  fur- 
nished to  the  collector  of  customs  of  such  port,  together  with  the 
copy  of  the  bill  of  sale,  conveyance,  or  mortgage  to  be  recorded,  a 
certified  copy  of  the  record  of  the  vessel  at  the  former  port  of  docu- 
mentation furnished  by  the  collector  of  such  port.  The  collector  of 
customs  at  the  new  port  of  documentation  is  authorized  and  directed 
to  record  such  certified  copy. 

(d)  A  preferred  mortgage  may  bear  such  rate  of  interest  as  is 
agreed  by  the  parties  thereto. 

Subsection  I.  Each  collector  of  customs  shall  permit  records  made 
under  the  provisions  of  this  section  to  be  inspected  during  office 
hours,  under  such  reasonable  regulations  as  the  collector  may  estab- 
lish. Upon  the  request  of  any  person  the  collector  of  customs  shall 
furnish  him  from  the  records  of  the  collector's  office  (i)  a  certificate 
setting  forth  the  names  of  the  owners  of  any  vessel,  the  interest 
held  by  each  owner,  and  the  material  facts  as  to  any  bill  of  sale  or 
conveyance  of,  any  mortgage  covering,  or  any  lien  or  other  incum- 
brance upon,  a  specified  vessel,  (2)  a  certified  copy  of  any  bill  of 
sale,  conveyance,  mortgage,  notice  of  claim  of  lien,  or  certificate  of 


282  APPENDICES 

discharge  in  respect  to  such  vessel,  or  (3)  a  certified  copy  as  required 
by  subdivision  (c)  of  subsection  H.  The  collector  of  customs  shall 
collect  a  fee  for  any  bill  of  sale,  conveyance,  or  mortgage  recorded, 
or  any  certificate  or  certified  copy  furnished,  by  him,  in  the  amount 
of  20  cents  a  folio  v^ith  a  minimum  charge  of  $1.00.  All  such  fees 
shall  be  covered  into  the  Treasury  of  the  United  States  as  miscel- 
laneous receipts. 

PENALTIES. 

Subsection  J.  (a)  If  the  master  of  the  vessel  willfully  fails  to  ex- 
hibit the  documents  of  the  vessel  or  the  copy  of  any  preferred  mort- 
gage thereof,  as  required  by  subsection  E,  the  board  of  local  inspec- 
tors of  vessels  having  jurisdiction  of  the  license  of  the  master,  may 
suspend  or  cancel  such  license,  subject  to  the  provisions  of  "  An  Act 
to  provide  for  appeals  from  decision  of  boards  of  local  inspectors  of 
vessels  and  for  other  purposes,"  approved  June  10,  1918. 

(b)  A  mortgagor  who,  with  intent  to  defraud,  violates  any  pro- 
vision of  subsection  F,  and  if  the  mortgagor  is  a  corporation  or  asso- 
ciation, the  president  or  other  principal  executive  officer  of  the  cor- 
poration or  association,  shall  upon  conviction  thereof  be  held  guilty 
of  a  misdemeanor  and  shall  be  fined  not  more  than  $1,000  or  im- 
prisonment not  more  than  2  years,  or  both.  The  mortgaged  in- 
debtedness shall  thereupon  become  immediately  due  and  payable  at 
the  election  of  the  mortgagee. 

(c)  If  any  person  enters  into  any  contract  secured  by,  or  upon  the 
credit  of,  a  vessel  of  the  United  States  covered  by  a  preferred  mort- 
gage, and  suffers  pecuniary  loss  by  reason  of  the  failure  of  the  collec- 
tor of  customs,  or  any  officer,  employee,  or  agent  thereof,  properly  to 
perform  any  duty  required  of  the  collector  under  the  provisions  of 
this  section,  the  collector  of  customs  shall  be  liable  to  such  person 
for  damages  in  the  amount  of  such  loss.  If  any  such  person  is 
caused  any  such  loss  by  reason  of  the  failure  of  the  mortgagor,  or 
master  of  the  mortgaged  vessel,  or  any  officer,  employee,  or  agent 
thereof,  to  comply  with  any  provision  of  subsection  E  or  F  or  to 
file  an  affidavit  as  required  by  subdivision  (a)  of  subsection  D, 
correct  in  each  particular  thereof,  the  mortgagor  shall  be  liable  to 
such  person  for  damages  in  the  amount  of  such  loss.  The  district 
courts  of  the  United  States  are  given  jurisdiction  (but  not  to  the 
exclusion  of  the  courts  of  the  several  States,  Territories,  Districts, 
or  possessions)  of  suits  for  the  recovery  of  such  damages,  irrespec- 
tive of  the  amount  involved  in  the  suit  or  the  citizenship  of  the  parties 
thereto.  Such  suit  shall  be  begun  by  personal  service  upon  the 
defendant  within  the  limits  of  the  district.  Upon  judgment  for 
the  plaintiff  in  any  such  suit,  the  court  shall  include  in  the  judgment 
an  additional  amount  for  costs  of  the  action  and  a  reasonable  coun- 
sel's fee,  to  be  fixed  by  the  court. 


THE  MERCHANT  MARINE  ACT  283 

FORECLOSURE   OF    PREFERRED    MORTGAGES. 

Subsection  K.  A  preferred  mortgage  shall  constitute  a  lien  upon 
the  mortgaged  vessel  in  the  amount  of  the  outstanding  mortgage  in- 
debtedness secured  by  such  vessel.  Upon  the  default  of  any  term  or 
condition  of  the  mortgage,  such  lien  may  be  enforced  by  the  mort- 
gagee by  suit  in  rem  in  admiralty.  Original  jurisdiction  of  all  such 
suits  is  granted  to  the  district  courts  of  the  United  States  exclusively. 
In  addition  to  any  notice  by  publication,  actual  notice  of  the  com- 
mencement of  any  such  suit  shall  be  given  by  the  libellant,  in  such 
manner  as  the  court  shall  direct,  to  (r)  the  master,  other  ranking 
officer,  or  caretaker  of  the  vessel,  and  (2)  any  person  who  has  re- 
corded a  notice  of  claim  of  an  undischarged  lien  upon  the  vessel,  as 
provided  in  subsection  G,  unless  after  search  by  the  libellant  satisfac- 
tory to  the  court,  such  mortgagor,  master,  other  ranking  officer,  care- 
taker, or  claimant  is  not  found  within  the  United  States.  Failure 
to  give  notice  to  any  such  person,  as  required  by  this  subsection, 
shall  not  constitute  a  jurisdictional  defect;  but  the  libellant  shall 
be  liable  to  such  person  for  damages  in  the  amount  of  his  interest 
in  the  vessel  terminated  by  the  suit.  Suit  in  personam  for  the  re- 
covery of  such  damages  may  be  brought  in  accordance  with  the 
provisions  of  subdivision  (c)  of  subsection  J. 

Subsection  L.  In  any  suit  in  rem  in  admiralty  for  the  enforcement 
of  the  preferred  mortgage  lien,  the  court  may  appoint  a  receiver  and, 
in  its  discretion,  authorize  the  receiver  to  operate  the  mortgaged 
vessel.  The  marshal  may  be  authorized  and  directed  by  the  court 
to  take  possession  of  the  mortgaged  vessel  notwithstanding  the  fact 
that  the  vessel  is  in  the  possession  or  under  the  control  of  any  person 
claiming  a  possessory  common-law  lien. 

Subsection  M.  (a)  When  used  hereinafter  in  this  section,  the 
term  "preferred  maritime  lien"  means  (i)  a  lien  arising  prior  in 
time  to  the  recording  and  indorsement  of  a  preferred  mortgage  in 
accordance  with  the  provisions  of  this  section;  or  (2)  a  lien  for  dam- 
ages arising  out  of  tort,  for  wages  of  a  stevedore  when  employed 
directly  by  the  owner,  operator,  master,  ship's  husband,  or  agent  of 
the  vessel,  for  wages  of  the  crew  of  the  vessel,  for  general  average, 
and  for  salvage,  including  contract  salvage. 

(b)  Upon  the  sale  of  any  mortgaged  vessel  by  order  of  a  district 
court  of  the  United  States  in  any  suit  in  rem  in  admiralty  for  the 
enforcement  of  a  preferred  mortgage  lien  thereon,  all  preexisting 
claims  in  the  vessel,  including  any  possessory  common-law  lien  of 
which  a  lienor  is  deprived  under  the  provisions  of  subsection  L  shall 
be  held  terminated  and  shall  thereafter  attach,  in  like  amount  and 
in  accordance  with  their  respective  priorities,  to  the  proceeds  of 
the  sale ;  except  that  the  preferred  mortgage  lien  shall  have  priority 
over  all  claims  against  the  vessel,  except  (i)  preferred  maritime  liens, 
and  (2)  expenses  and  fees  allowed  and  costs  taxed,  by  the  court. 

Subsection  N.   (a)   Upon  the  default  of  any  term  or  condition  of 


284  APPENDICES 

a  preferred  mortgage  upon  a  vessel,  the  mortgagee  may,  in  addition 
to  all  other  remedies  granted  by  this  section,  bring  suit  in  personam 
in  admiralty  in  a  district  court  of  the  United  States,  against  the 
mortgagor  for  the  amount  of  the  outstanding  mortgage  indebtedness 
secured  by  such  vessel  or  any  deficiency  in  the  full  payment  thereof, 
(b)  This  section  shall  not  be  construed,  in  the  case  of  a  mortgage 
covering,  in  addition  to  vessels,  realty  or  personalty  other  than  ves- 
sels, or  both,  to  authorize  the  enforcement  by  suit  in  rem  in  admiralty 
of  the  rights  of  the  mortgagee  in  respect  to  such  realty  or  personalty 
other  than  vessels. 

TRANSFERS      OF      MORTGAGED      VESSELS      AND      ASSIGNMENT      OF      VESSEL 

MORTGAGES. 

Subsection  O.  (a)  The  documents  of  a  vessel  of  the  United  States 
covered  by  a  preferred  mortgage  may  not  be  surrendered  (except  in 
the  case  of  the  forfeiture  of  the  vessel  or  its  sale  by  the  order  of  any 
court  of  the  United  States  or  any  foreign  country)  without  the 
approval  of  the  board.  The  board  shall  refuse  such  approval  unless 
the  mortgagee  consents  to  such  surrender. 

(b)  The  interest  of  the  mortgagee  in  a  vessel  of  the  United  States 
covered  by  a  mortgage,  shall  not  be  terminated  by  the  forfeiture  of 
the  vessel  for  a  violation  of  any  law  of  the  United  States,  unless  the 
mortgagee  authorized,  consented,  or  conspired  to  effect  the  illegal 
act,  failure,  or  omission  which  constituted  such  violation. 

(c)  Upon  the  sale  of  any  vessel  of  the  United  States  covered  by  a 
preferred  mortgage,  by  order  of  a  district  court  of  the  United  States 
in  any  suit  in  rem  in  admiralty  for  the  enforcement  of  a  maritime  lien 
other  than  a  preferred  maritime  lien,  the  vessel  shall  be  sold  free  from 
all  preexisting  claims  thereon ;  but  the  court  shall,  upon  the  request 
of  the  mortgagee,  the  libellant,  or  an  intervener,  require  the  pur- 
chaser at  such  sale  to  give  and  the  mortgagor  to  accept  a  new  mort- 
gage of  the  vessel  for  the  balance  of  the  term  of  the  original  mort- 
gage. The  conditions  of  such  new  mortgage  shall  be  the  same,  so 
far  as  practicable,  as  those  of  the  original  mortgage  and  shall  be  sub- 
ject to  the  approval  of  the  court.  If  such  new  mortgage  is  given, 
the  mortgagee  shall  not  be  paid  from  the  proceeds  of  the  sale  and  the 
amount  payable  as  the  purchase  price  shall  be  held  diminished  in  the 
amount  of  the  new  mortgage  indebtedness. 

(d)  No  rights  under  a  mortgage  of  a  vessel  of  the  United  States 
shall  be  assigned  to  any  person  not  a  citizen  of  the  United  States 
without  the  approval  of  the  board.  Any  assignment  in  violation  of 
any  provision  of  this  section  shall  be  void. 

(e)  No  vessel  of  the  United  States  shall  be  sold  by  order  of  a  dis- 
trict court  of  the  United  States  in  any  suit  in  rem  in  admiralty  to  any 
person  not  a  citizen  of  the  United  States. 


THE  MERCHANT  MARINE  ACT  285 

MARITIME   LIENS    FOR    NECESSARIES. 

Subsection  P.  Any  person  furnishing  repairs,  supplies,  towage, 
use  of  dry  dock  or  marine  railway,  or  other  necessaries,  to  any  vessel, 
whether  foreign  or  domestic,  upon  the  order  of  the  owner  of  such 
vessel,  or  of  a  person  authorized  by  the  owner,  shall  have  a  maritime 
lien  on  the  vessel,  which  may  be  enforced  by  suit  in  rem,  and  it  shall 
not  he  necessary  to  allege  or  prove  that  credit  was  given  to  the  vessel. 

Subsection  Q.  The  following  persons  shall  be  presumed  to  have 
authority  from  the  owner  to  procure  repairs,  supplies,  towage,  use  of 
dry  dock  or  marine  railway,  and  other  necessaries  for  the  vessel: 
The  managing  owner,  ship's  husband,  master,  or  any  person  to  whom 
the  management  of  the  vessel  at  the  port  of  supply  is  intrusted.  No 
person  tortiously  or  unlawfully  in  possession  or  charge  of  a  vessel 
shall  have  authority  to  bind  the  vessel. 

Subsection  R.  The  ofificers  and  agents  of  a  vessel  specified  in  sub- 
section Q  shall  be  taken  to  include  such  officers  and  agents  when 
appointed  by  a  charterer,  by  an  owner  pro  hac  vice,  or  by  an  agreed 
purchaser  in  possession  of  the  vessel ;  but  nothing  in  this  section  shall 
be  construed  to  confer  a  lien  when  the  furnisher  knew,  or  by  exer- 
cise of  reasonable  diligence  could  have  ascertained,  that  because  of 
the  terms  of  a  charter  party,  agreement  for  sale  of  the  vessel,  or  for 
any  other  reason,  the  person  ordering  the  repairs,  supplies,  or  other 
necessaries  was  without  authority  to  bind  the  vessel  therefor. 

Subsection  S.  Nothing  in  this  section  shall  be  construed  to  prevent 
the  furnisher  of  repairs,  supplies,  towage,  use  of  dry  dock  or  marine 
railway,  or  other  necessaries,  or  the  mortgagee,  from  waiving  his 
right  to  a  lien,  or  in  the  case  of  a  preferred  mortgage  lien,  to  the 
preferred  status  of  such  lien,  at  any  time,  by  agreement  or  otherwise ; 
and  this  section  shall  not  be  construed  to  affect  the  rules  of  law  now 
existing  in  regard  to  (i)  the  right  to  proceed  against  the  vessel  for 
advances,  (2)  laches  in  the  enforcement  of  liens  upon  vessels,  (3)  the 
right  to  proceed  in  personam,  (4)  the  rank  of  preferred  maritime 
liens  among  themselves,  or  (5)  priorities  between  maritime  liens  and 
mortgages,  other  than  preferred  mortgages,  upon  vessels  of  the 
United  States. 

Subsection  T.  This  section  shall  supersede  the  provisions  of  all 
State  statutes  conferring  liens  on  vessels,  in  so  far  as  such  statutes 
purport  to  create  rights  of  action  to  be  enforced  by  suits  in  rem  in 
admiralty  against  vessels  for  repairs,  supplies,  towage,  use  of  dry 
dock  or  marine  railway,  and  other  necessaries. 

MISCELLANEOUS    PROVISIONS. 

Subsection  U.  This  section  shall  not  apply  (i)  to  any  existing 
mortgage,  or  (2)  to  any  mortgage  hereafter  placed  on  any  vessel  now 
under  an  existing  mortgage,  so  long  as  such  existing  mortgage  re- 
mains undischarged. 

Subsection   V.    The    Secretary   of   Commerce    is   authorized   and 


286  APPENDICES 

directed  to  furnish  collectors  of  customs  with  all  necessary  books  and 
records,  and  with  certificates  of  registry  and  of  enrollment  and 
license  in  such  form  as  provides  for  the  making  of  all  indorsements 
thereon  required  by  this  section. 

Subsection  W.  The  Secretary  of  Commerce  is  authorized  to  make 
such  regulations  in  respect  to  the  recording  and  indorsing  of  mort- 
gages covering  vessels  of  the  United  States,  as  he  deems  necessary  to 
the  efficient  execution  of  the  provisions  of  this  section. 

Subsection  X.  Sections  4192  to  4196,  inclusive,  of  the  Revised  Stat- 
utes of  the  United  States,  as  amended,  and  the  Act  entitled  "  An  Act 
relating  to  liens  on  vessels  for  repairs,  supplies,  or  other  necessaries," 
approved  June  23.  1910,  are  repealed.  This  section,  however,  so  far 
as  not  inconsistent  with  any  of  the  provisions  of  law  so  repealed, 
shall  be  held  a  reenactment  of  such  repealed  law,  and  any  right  or 
obligation  based  upon  any  provision  of  such  law  and  accruing  prior 
to  such  repeal,  may  be  prosecuted  in  the  same  manner  and  to  the 
same  effect  as  if  this  Act  had  not  been  passed. 

Sec.  31.  That  section  4530  of  the  Revised  Statutes  of  the  United 
States  is  amended  to  read  as  follows: 

"  Sec.  4530.  Every  seaman  on  a  vessel  of  the  United  States  shall 
be  entitled  to  receive  on  demand  from  the  master  of  the  vessel  to 
which  he  belongs  one-half  part  of  the  balance  of  his  wages  earned 
and  remaining  unpaid  at  the  time  when  such  demand  is  made  at 
every  port  where  such  vessel,  after  the  voyage  has  been  commenced, 
shall  load  or  deliver  cargo  before  the  voyage  is  ended,  and  all  stipu- 
lations in  the  contract  to  the  contrary  shall  be  void:  Provided,  Such 
a  demand  shall  not  be  made  before  the  expiration  of,  nor  oftener 
than  once  in,  five  days  nor  more  than  once  in  the  same  harbor  on  the 
same  entry.  Any  failure  on  the  part  of  the  master  to  comply  with 
this  demand  shall  release  the  seaman  from  his  contract  and  he  shall 
be  entitled  to  full  payment  of  wages  earned.  And  when  the  voyage 
is  ended  every  such  seaman  shall  be  entitled  to  the  remainder  of  the 
wages  which  shall  be  then  due  him,  as  provided  in  section  4529  of 
the  Revised  Statutes:  Provided  further,  That  notwithstanding  any 
release  signed  by  any  seaman  under  section  4552  of  the  Revised 
Statutes  any  court  having  jurisdiction  may  upon  good  cause  shown 
set  aside  such  release  and  take  such  action  as  justice  shall  require: 
And  provided  further.  That  this  section  shall  apply  to  seamen  on 
foreign  vessels  while  in  harbors  of  the  United  States,  and  the  courts 
of  the  United  States  shall  be  open  to  such  seamen  for  its  enforcement." 

Sec.  32.  That  paragraph  (a)  of  section  10  of  the  Act  entitled  "  An 
Act  to  remove  certain  burdens  on  the  American  merchant  marine 
and  encourage  the  American  foreign  carrying  trade,  and  for  other 
purposes,"  approved  June  26,  1884,  as  amended,  is  hereby  amended 
to  read  as  follows : 

"  Sec.  10.  (a)  That  it  shall  be,  and  is  hereby,  made  unlawful  in 
any  case  to  pay  any  seaman  wages  in  advance  of  the  time  when  he 
has  actually  earned  the  same,  or  to  pay  such  advance  wages,  or  to 


THE  MERCHANT  MARINE  ACT  287 

make  any  order,  or  note,  or  other  evidence  of  indebtedness  therefor 
to  any  other  person,  or  to  pay  any  person,  for  the  shipment  of  seamen 
when  payment  is  deducted  or  to  be  deducted  from  a  seaman's  wages. 
Any  person  violating  any  of  the  foregoing  provisions  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall 
be  punished  by  a  fine  of  not  less  than  $25  nor  more  than  $100,  and 
may  also  be  imprisoned  for  a  period  of  not  exceeding  six  months,  at 
the  discretion  of  the  court.  The  payment  of  such  advance  wages  or 
allotment,  whether  made  within  or  without  the  United  States  or  ter- 
ritory subject  to  the  jurisdiction  thereof,  shall  in  no  case  except  as 
herein  provided  absolve  the  vessel  or  the  master  or  the  owner  thereof 
from  the  full  payment  of  wages  after  the  same  shall  have  been  ac- 
tually earned,  and  shall  be  no  defense  to  a  libel  suit  or  action  for  the 
recovery  of  such  wages.  If  any  person  shall  demand  or  receive, 
either  directly  or  indirectly,  from  any  seaman  or  other  person  seek- 
ing employment,  as  seaman,  or  from  any  person  on  his  behalf,  any 
remuneration  whatever  for  providing  him  with  employment,  he  shall 
for  every  such  offense  be  deemed  guilty  of  a  misdemeanor  and  shall 
be  imprisoned  not  more  than  six  months  or  fined  not  more  than  $500." 
Sec.  33.  That  section  20  of  such  Act  of  March  4,  1915,  be,  and  is, 
amended  to  read  as  follows : 

"  Sfx.  20.  That  any  seaman  who  shall  suffer  personal  injury  in 
the  course  of  his  employment  may,  at  his  election,  maintain  an  action 
for  damages  at  law,  with  the  right  of  trial  by  jury,  and  in  such  action 
all  statutes  of  the  United  States  modifying  or  extending  the  common- 
law  right  or  remedy  in  cases  of  personal  injury  to  railway  employees 
shall  apply;  and  in  case  of  the  death  of  any  seaman  as  a  result  of  any 
such  personal  injury  the  personal  representative  of  such  seaman  may 
maintain  an  action  for  damages  at  law  with  the  right  of  trial  by 
jury,  and  in  such  action  all  statutes  of  the  United  States  conferring 
or  regulating  the  right  of  action  for  death  in  the  case  of  railway  em- 
ployees shall  be  applicable.  Jurisdiction  in  such  actions  shall  be 
under  the  court  of  the  district  in  which  the  defendant  employer 
resides  or  in  which  his  principal  office  is  located." 

Sec.  34.  That  in  the  judgment  of  Congress,  articles  or  provisions 
in  treaties  or  conventions  to  which  the  United  States  is  a  party, 
which  restrict  the  right  of  the  United  States  to  impose  discriminat- 
ing customs  duties  on  imports  entering  the  United  States  in  foreign 
vessels  and  in  vessels  of  the  United  States,  and  which  also  restrict 
the  right  of  the  United  States  to  impose  discriminatory  tonnage 
dues  on  foreign  vessels  and  on  vessels  of  the  United  States  entering 
the  United  States  should  be  terminated,  and  the  President  is  hereby 
authorized  and  directed  within  ninety  days  after  this  Act  becomes 
law  to  give  notice  to  the  several  Governments,  respectively,  parties 
to  such  treaties  or  conventions,  that  so  much  thereof  as  imposes  any 
such  restriction  on  the  United  States  will  terminate  on  the  expira- 
tion of  such  periods  as  may  be  required  for  the  giving  of  such  notice 
by  the  provisions  of  such  treaties  or  conventions. 


288  APPENDICES 

Sec.  35.  That  the  power  and  authority  vested  in  the  board  by 
this  Act,  except  as  herein  otherwise  specifically  provided,  may  be 
exercised  directly  by  the  board,  or  by  it  through  the  United  States 
Shipping  Board  Emergency  Fleet  Corporation. 

Sec.  36.  That  if  any  provision  of  this  Act  is  declared  unconstitu- 
tional or  the  application  of  any  provision  to  certain  circumstances 
be  held  invalid,  the  remainder  of  the  Act  and  the  application  of  such 
provisions  to  circumstances  other  than  those  as  to  which  it  is  held 
invalid  shall  not  be  affected  thereby. 

Sec.  37.  That  when  used  in  this  Act,  unless  the  context  otherwise 
requires,  the  terms  ''  person,"  "  vessel,"  "  documented  under  the 
laws  of  the  United  States,"  and  "  citizen  of  the  United  States  "  shall 
have  the  meaning  assigned  to  them  by  sections  i  and  2  of  the  "  Ship- 
ping Act,  1916,"  as  amended  by  this  Act;  the  term  "board"  means 
the  United  States  Shipping  Board;  and  the  term  "alien"  means  any 
person  not  a  citizen  of  the  United  States. 

Sec.  38.  That  section  2  of  the  Shipping  Act,  1916,  is  amended  to 
read  as  follows: 

"  Sec.  2.  (a)  That  within  the  meaning  of  this  Act  no  corporation, 
partnership,  or  association  shall  be  deemed  a  citizen  of  the  United 
States  unless  the  controlling  interest  therein  is  owned  by  citizens 
of  the  United  States,  and,  in  the  case  of  a  corporation,  unless  its 
president  and  managing  directors  are  citizens  of  the  United  States 
and  the  corporation  itself  is  organized  under  the  laws  of  the  United 
States  or  of  a  State,  Territory,  District,  or  possession  thereof,  but 
in  the  case  of  a  corporation,  association,  or  partnership  operating 
any  vessel  in  the  coastwise  trade  the  amount  of  interest  required  to 
be  owned  by  citizens  of  the  United  States  shall  be  75  per  centum. 

"  (b)  The  controlling  interest  in  a  corporation  shall  not  be  deemed 
to  be  owned  by  citizens  of  the  United  States  (a)  if  the  title  to  a  ma- 
jority of  the  stock  thereof  is  not  vested  in  such  citizens  free  from 
any  trust  or  fiduciary  obligation  in  favor  of  any  person  not  a  citizen  of 
the  United  States;  or  (b)  if  the  majority  of  the  voting  power  in 
such  corporations  is  not  vested  in  citizens  of  the  United  States;  or 
(c)  if  through  any  contract  or  understanding  it  is  so  arranged  that 
the  majority  of  the  voting  power  may  be  exercised,  directly  or 
indirectly,  in  behalf  of  any  person  who  is  not  a  citizen  of  the  United 
States;  or  (d)  if  by  any  other  means  whatsoever  control  of  the  cor- 
poration is  conferred  upon  or  permitted  to  be  exercised  by  any 
person  who  is  not  a  citizen  of  the  United  States. 

"  (c)  Seventy-five  per  centum  of  the  interest  in  a  corporation  shall 
not  be  deemed  to  be  owned  by  citizens  of  the  United  States  (a)  if  the 
title  to  75  per  centum  of  its  stock  is  not  vested  in  such  citizens  free 
from  any  trust  or  fiduciary  obligation  in  favor  of  any  person  not  a 
citizen  of  the  United  States;  or  (b)  if  75  per  centum  of  the  voting 
power  in  such  corporations  is  not  vested  in  citizens  of  the  United 
States;  or    (c)    if,  through  any  contract  or  understanding  it  is  so 


THE  MERCHANT  MARINE  ACT  289 

arranged  that  more  than  25  per  centum  of  the  voting  power  in  such 
corporation  may  be  exercised,  directly  or  indirectly,  in  behalf  of  any 
person  who  is  not  a  citizen  of  the  United  States;  or  (d)  if  by  any 
other  means  whatsoever  control  of  any  interest  in  the  corporation 
in  excess  of  25  per  centum  is  conferred  upon  or  permitted  to  be 
exercised  by  any  person  who  is  not  a  citizen  of  the  United  States. 

"  (d)  The  provisions  of  this  Act  shall  apply  to  receivers  and 
trustees  of  all  persons  to  whom  the  Act  applies,  and  to  the  successors 
or  assignees  of  such  persons." 

Sec.  39.  That  this  Act  may  be  cited  as  the  Merchant  Marine  Act, 
1920. 

Approved  June  5,  1920. 


APPENDIX  III 

PROTEST 

The  following  is  a  specimen  of  a  marine  protest.  It  is  taken 
from  Lawrence  v.  Minturn,  ly  How.  lOO.  It  was  signed  by  all  the 
officers  and  by  such  of  the  crew  as  could  write : 

August  29,  1851,  Latitude  31°  o'  N.,  Longitude  61°  5'  W. 

At  sea,  on  board  ship  Hornet  of  New  York.  William  W.  Lawrence, 
master,  bound  from  New  York  to  San  Francisco,  California. 

We,  the  undersigned,  master,  officers  and  mariners  of  the  ship 
Hornet,  of  New  York,  do,  after  mature  and  serious  deliberation, 
enter  this  solemn  protest:  That  on  August  26th,  1851,  the  ship  Hornet 
being  then  in  or  about  the  longitude  of  49°  W.,  latitude  37°  N.,  ex- 
periencing a  gale  of  wind  from  the  south,  veering  to  N,  W. :  and  that 
during  said  gale,  which  lasted  until  the  night  of  the  27th  of  August, 
the  weight  of  the  deck  load,  consisting  of  two  boilers,  with  furnaces 
attached,  and  two  steam  chimneys  (the  whole  supposed  to  be  of  the 
weight  of  forty  tons  or  thereabouts),  did  cause  the  ship  to  labor  very 
hard,  rolling  gunwale  deep,  shipping  large  bodies  of  water,  straining 
the  ship  in  her  upper  works  and  decks,  causing  the  ship  to  leak  badly, 
and  her  pumps  constantly  worked,  placing  our  lives,  ship  and  cargo 
in  imminent  peril  for  their  safety.  We  now,  therefore,  do  most  seri- 
ously and  solemnly  assert,  that  for  the  future  preservation  of  the 
ship,  and  thereby  our  lives  and  cargo,  the  said  boilers,  furnaces  and 
chimneys  are  unsafe  on  the  decks,  and  for  the  safety  of  the  whole 
should  be  thrown  overboard  as  soon  as  possible,  the  weather  and  sea 
permitting. 

In  testimony  whereof  to  the  above,  we  hereby  subscribe  our  re- 
spective names. 


290 


TABLE  OF  CASES 

PAQB 

Aguan,  48  Fed.  320 53 

Albany,  The,  44  Fed.  431 46,  188,  206 

Albert  Dumois,  177  U.  S.  240 151 

Albina  Ferry  Co.  v.  Imperial  and  S.  G.  Reed,  38  Fed.  614 167 

Allanwilde  Transport  Corp.  v.  Vacuum  Co.,  248  U.  S.  377 90 

Ambrose  Light,  25  Fed.  408 199 

Amelie,  6  Wall.  (U.  S.)  18 20,     50 

America.     See  Fads  v.  Brazelton,  22  Ark.  499 208 

America.     See  Gracie  v.  Palmer,  8  Wheat.  (U.  S.)  605' 95 

American  Sugar  Refining  Co.  v.  Maddock,  93  Fed.  980 42 

Ancaios,   170  Fed.  106 53 

Anderson  v.  Munson,  104  Fed.  913 102 

Arcturus,  17  Fed.  95 44 

Atlantic,   53   Fed.  607 41,  129 

Atlas,  3  Otto  (U.  S.)  302 152 

Atlee  V.  Union  Packet  Co.,  21  Wall.  (U.  S.)  389 148,  215 

Attorney  General's  Opinion,  29  Op.  i^ 2^ 

Aurora,  i  Wheat.  (U.  S.)  96 50,  140 

Australasian  Steam  Navigation  Co.  v.  Morse,  L.  R.  4  P.  S.  222, 

I  Aspin.  407,  27  LT.  Rep.  N.  S.  357.  8  Moore  P.  C,  N.  S. 

482,  20  Weekly  Rep.  728,  17  Eng.  Reprint  393 47 

Barker  v.  The  Swallow,  44  Fed.  771 73 

Barnard  v.  Adams,  10  How.  (U.  S.)  270 189 

Barnstable,  181  U.  S.  464. 33>  i04 

Behrens  v.  Furnessia,  35  Fed.  798 82 

Belden  v.  Chase,  150  U.  S.  674 150 

Belfast,  7  Wall.  (U.  S.)  624 4 

Belgenland,  114  U.  S.  355.  .• 158 

Benefactor,  103  U.  S.  247 124 

Blake,  107  U.  S.  418 I47 

Bold  Buccleugh,  The,  7  Moore  P.  C.  267 130 

Boskenna  Bay,  36  Fed.  697 no 

Boston,  The,  Blatch  &  H.  309 40 

Bowring  v.  Thebaud,  56  Fed.  520 87 

Boyce  v.  Bayliffe,  i  Campbell  58 80 

Brewster,  95  Fed.  1000 49 

291 


292  TABLE  OF  CASES 

FAOE 

Bristol,  29  Fed.  867 126 

Brown  v.  Lull,  2  Sumner  559 54 

Bulkley  v.  Insurance  Co.,  Fed.  Cas.  No.  2,  118 89 

Burlington,  jt,  Fed.  258 188 

Burrill,  65  Fed.   104 m 

Burt.    See  Murphy  v.  Dunham,  38-  Fed.  503 188,  202,  206 

Calderon  v.  Atlas  Steamship  Co.,  170  U.  S.  272,  42  L.  ed.  1033. .   100 

Caledonia,  157  U.  S.  124 70 

Calypso,  230  Fed.  962 4^ 

Carib  Prince,  170  U.  S.  655 121 

Catalonia,  236  Fed.  554 68 

Cayuga,  16  Wall.  (U.  S.)  177 168 

Centurion,  57  Fed.  412 no 

Cervantes,  135  Fed.  573 31 

Chamberlain  v.  Chandler,  3  Mason  242 80 

Chamberlain  v.  Ward,  21  How.  (U.  S.)  548 31 

Charlotte,  The.  3  W.  Rob.  Adm.  68 184 

Chicago,  235  Fed.   S38 68 

China,  The,  7  Wall.  (U.  S.)  53 126,  174,  178 

Citizen.    'See  Quickstep,  9  Wall.  (U.  S.)  665 163 

City  of  Norwich,  118  U.  S.  468 123,  124 

City  of  Panama,  loi  U.  S.  453 82 

Civilta  and  Restless,  13  Otto  699. 167,  169 

Clara  Clarita,  23  Wall.  (U.  S.)   1 166,  169 

Clark  V.  Burns,  118  Mass.  275 79 

Clifton,  The,  3  Hagg.  Adm.  14,  48 180 

Compania  de  Navigacion  La  Flecha  v.  Brauer,  168  U.  S.  104. ...     93 

Company  v.  Dexter,  52  Fed.  152 41 

Constable  v.  National  Steamship  Co.,  154  U.  S.  51 76,    90 

Cope  V.  Drydock  Co.,  1 19  U.  S.  625 180 

Craig  V.  Insurance  Co.,  14T  U.  S.  638 204 

Crapo  V.  Kelly,  16  Wall.  610 15 

Crossman  v.  Burrill,  179  U.  S.  100 no 

Dallemagne  v.  Moison,  197  U.  S.  169 68 

Dan,  40  Fed.  691 85 

Daniel  Kane,  The,  35  Fed.  785 26 

Davidson  v.  Baldwin,  79  Fed.  95 36 

Davies  v.  Mann,  10  M.  &  W.  546 .-.  ,•  217 

Delaware  Ins.  Co.  v.  Gossler,  6  Otto  (U.  S.)  645       140 

Dempster  Shipping  Co.  v.  Pouppirt,  125  Fed.  732 82 

Dene,  103  Fed.  983 m 

DeSmet,  The.   10  Fed.  483 137 

Dixie,  46  Fed.  403 „ m 

Dixon  V.  Whitworth,  4  Asp.  M.  L.  C.  138,  327 ^ 188 


TABLE  OF  CASES  293 

PAGE 

Button  V.  Strong,  i  Black  23 212,  215 

Dyer.     See  Scotland,  118  U.  S.  507 123 

Eads  V.  Brazelton,  22  Arkansas  499 208 

Edgar  F.  Coney.     Sec  Marie  Palmer,  191  Fed.  79 161 

Egypt.     Sec  Constable  v.  National  Steamship  Co.,  154  U.  S.  51. .  76 

Ellis  Warley.    See  North  Star,  106  U.  S.  17. 156 

Elton,  83  Fed.  519 45 

Ely,  1 10  Fed.  563 1 1 1 

Emily  B.  Souder,  15  Blatch.  185,  Fed.  Cas.  No.  4,  458 184 

Empire  Shipbuilding  Co.,  221  Fed.  223 144 

Endora,  190  U.  S.  169 68 

Erastina,  50  Fed.  126 160 

Europa,  2  Eng.  L.  &  E.  559 149 

Fair  American,  i  Peters  Adm.  87,  4  Fed.  Cas.  No.  1874 184 

Field  Line  v.  South  Atlantic  Co.,  201  Fed.  301 92 

Fitzgerald,  212  Fed.  678 85 

Fleming  v.  Fire  Assoc,  147  Mich.  404 24 

Fortuna.     Sec  Barnstable,  181  U.  S.  464 104 

Frances.    See  Delaware  Ins.  Co.  v.  Gossler,  6  Otto  (U.  S.)  645. .  140 

Francis,  21  Fed.  715 110 

Freeman,  18  How.  (U.  S.)  182 34,  42,  92 

Future  City,  184  U.  S.  247 216 

Gardner  v.  Gold  coins,  1 1 1  Fed.  552 187 

Garland,  The,   16  Fed.  283 18,  135 

General  Cass,  i   Brown  Adm.  334 2 

Germania  Ins.  Co.  v.  Lady  Pike,  21  Wall.  (U.  S.)  i 72 

Gillespie  v.  Winberg,  4  Daly  (N.  Y.)  318 38 

Goddard,  T.  A,,  12  Fed.  174 104 

Gould  z'.  Jacobson,  58  Mich.  288 18 

Gracie  v.  Palmer,  8  Wheat.  (U.  S.)  605 95 

Grant  v.  Norway,  10  C.  B.  665 42 

Grant  v.  Poillon,  20  How.  (U.  S.)  162 4 

Grapeshot,  9  Wall.  (U.  S.)  129 139,  147 

Gratitudine,  The,  3  C.  Rob.  Adm.  240 189 

Great  Eastern,  24  Fed.  Cas.  14,  no 183 

Guildhall,  58  Fed.  796 93 

Hagar  v.  Clark,  78  N.  Y.  45 91 

Hales.     See  Niagara,  yy  Fed.  329 153 

Hamilton,  The,  207  U.  S.  398 15 

Harlem.  27  Fed.  236 85 

Hattie  Thomas,  29  Fed.  297 41 

Hattie  P.,  63  Fed.  1015 85 


294  TABLE  OF  CASES 

FAOE 

Hector.    See  Sturgis  v.  Boyer,  24  How.  (U.  S.)  no 170 

Hercules,  28  Fed.  475 ^^3 

Herman  v.  Mill,  69  Fed.  646 126 

Hobart  et  al  v.  Drogan,  10  Peters  (U.  S.)  108 184 

Holmes,  i  Wall.  Jr.  i,  26  Fed.  Cas.  No.  15,  383 194 

Hopkins  v.  Forsyth,  14  Pa.  St.  38 27 

Hornet,  The.     See  Lawrence  v.  Minturn,  17  How.   (U.  S.)   100 

74.  189 

Hostetter  v.  Park,  137  U.  S.  30 88 

Hough  V.  Western  Transportation  Co.,  3  Wall.  (U.  S.)  20.  .4,  32,  126 

Hunter  v.  Prinsep,  10  East  378 77 

Huus  V.  Co.,  182  U.  S.  392,  395 12,    24 

Imberhorne,  240  Fed.  830 68 

Indrapura,  171   Fed.  929 88 

Insurance  Co.  v.  Dunham,  11  Wall.  (U.  S.)  i 4 

Intrepid.     See  Liverpool  &c.  Navigation  Co.  v.  Brooklyn  East- 
ern Dist.  Terminal,  U.  S.  Supreme  Court  Advance  Sheets, 

85 170 

Ixion,  237  Fed.   142 68 

Jackson  v.  Union  Marine  Insurance  Co.,  L.  R.  10  C.  P.  125 107 

Jefferson,  The,  215  U.  S.  130 181,  188 

Jenkins,  S.  S.  Co.  v.  Preston,  186  Fed.  108 53 

J.  C.  Pfluger,  109  Fed.  93 184 

J.  E.  Rumbell,  148  U.  S.  i 142,  147 

John  Buddie,  5  Notes  of  Cas.  387 151 

John  G.  Stevens,  170  U.  S.  113 129,  137 

John  Jay,  17  How.  (U.  S.)  399 24 

Joseph  B.  Thomas,  86  Fed.  658 58 

Kate,  164  U.  S.  458 133 

Kate  Aitken.     See  Wilson  v.  Charlestown  Pilots'  Association,  57 

Fed.  227 175 

Kensington,  183  U.  S.  263 85 

Kentucky.    See  The  China.  7  Wall.  (U.  S.)  53 178 

Keokuk,  The,  &c.  v.  Home  Ins.  Co.,  9  Wall.  (U.  S.)  526 72 

Knickerbocker  Ice  Co.  v.  Stewart,  253  U.  S.  149 57 

La  Bourgogne,  210  U.  S.  95 124 

Larch,  2  Curt.  434 27 

Larsen,  Ex  parte,  233  Fed.  708 60 

Lawrence  v.  Minturn,  17  How.  (U.  S.)  lOO 46,     74 

Leamington,  86  Fed.  675 182 

Lehigh  Valley  R.  R.  Co.  v.  Cornell  Steamboat  Co.,  218  U.  S.  264. .   155 
Liverpool  &c.  Navigation  Co.  v.  Brooklyn  Eastern  Dist.  Termi- 
nal, U,  S,  Supreme  Court  Advance  Sheets,  85 112,  114,  170 


TABLE  OF  CASES  295 

PAGE 

Lizzie  Burrill,  115  Fed.  1015 42 

Lombard  S.  S.  Co.  v.  Anderson,  134  Fed.  568 53 

Lottawanna,  21  Wall.  (U.  S.)  558 137 

Luckenbach  v.  McCahan  Sugar  Ref.  Co.,  248  U.  S.  139 118 

McConochie  v.  Kerr,  D.  C.  9  Fed.  50 184 

McLean  v.  Fleming,  L.  R.  2  H.  L.  Sc.  128  (English  cases) 42 

Mac,  7  P.  D.  126 3 

Majestic,  166  U.  S.  375 79 

Majestic,  56  Fed.  244 85,  1 10 

Malek  Adhel,  2  How.  (U.  S.)  210 112,  195 

Manitoba,  104  Fed.  145 85 

Marcadier  v.  Ins.  Co.,  8  Cranch  (U.  S.)  39 199 

Margharita,  140  Fed.  820 59 

Marie  Palmer,  191  Fed.  79 161,  165,  166 

Marjorie,  The,  151  Fed.  183 127,  128 

Mary,  The,  i  Sprague  19 189 

Max  Morris,  The,  137  U.  S.  i 58 

Mencke  v.  Sugar,  187  U.  S.  248 in 

Minnetonka.   146  Fed.   509 79 

Mitchell  V.  Chambers.  43  Mich.  150 38 

Mohawk,  The,  3  Wall.  (U.  S.)  566 12 

Moore  v.  Sun  Printing  &c.  Association,  183  U.  S.  642 109 

Morgan  v.  Parham,  16  Wall.  (U.  S.)  471 12 

Morning  Light.  2  Wall.  (U.  S.)  550 148 

Mosher,  17  Fed.  Cas.  No.  9874 164 

Murphy  V.  Dunham,  38  Fed.  503 188,  202,  206 

Mystic,  30  Fed.  73 160 

Nebraska,  The,  75  Fed.  598 40,  53 

Neilson  et  al  v.  Rhine  Shipping  Co.,  248  U.  S.  205 65 

New  World  v.  King,  16  How.  (U.  S.)  469 176 

Niagara,  The.  21  How.  (U.  S.)  7 39,  40,  45.  53 

Niagara,  -jj  Fed.  329 153 

Nicaragua.     Sec  Mosher,  17  Fed.  Cas.  No.  9874 164 

Normannia,  62  Fed.  469 85 

North  Star,  106  U.  S.  17 156 

O'Brien  v.  Miller,  168  U.  S.  287 124,  147 

Ocean  Spray,  4  Sawy.  105 62 

Ole  Olson,  20  Fed.  384 62 

Onderdonk  v.  Smith,  et  al,  27  Fed.  874 210 

Oregon,  158  U.  S.  186 151 

Orleans  z/.  Phoebus,  II  Peters  (U.  S.)  175 28,    44 

Osceola,  187  U.  S.  190 68 

Patapsco  Ins.  Co.  v.  Coulter,  3  Peters  (U.  S.)  222 199 


296  TABLE  OF  CASES 

FAOK 

Pendleton  v.  Benner  Line,  246  U.  S.  353 118,  124 

Pfluger,  J.  C,  109  Fed.  93 184 

Pickwick.     5"('<?  Gould  z;.  Jacobson,  58  Mich.  288 18 

Ponce,  178  Fed.  76 53 

Post  V.  Jones,  19  How.  (U.  S.)  150 47 

Prendergast  v.  Compton,  8  C.  &  P.  454 80 

Pulaski,  33  Fed.  383 129 

Quickstep,  9  Wall.  (U.  S.)  655 163 

Ragland  v.  Norfolk  &  Washington  Steamboat  Co.,  163  Fed.  376. .     42 

Railway  Co.  v.  Myers,  80  Fed.  361 82 

Ralli  V.  Troop,  157  U.  S.  386 174,  191 

Rebecca-Ware,  Fed.  Cas.  No.  11,629 124 

Relief.     See  Wilson  v.  Charlestown  Pilots'  Association,  57  Fed. 

227   175 

Republic.     See  Sturgis  v.  Boyer,  24  How.  (U.  S.)   no 170 

Reward,  i  W.  Rob.  174 185 

Richardson  v.  Harmon,  222  U.  S.  96. 118,  124,  215 

River  Mersey,  48  Fed.  686 207 

Robertson  v.  Baldwin,  165  U.  S.  275 60,     68 

Rock  Island  Bridge,  6  Wall.  (U.  S.)  213 129 

Ronalds,  109  Fed.  905 in 

Rosenthal,  57  Fed.  254 1 10 

Ross  V.  Mclntyre,  140  U.  S.  453 68 

Royal  Sceptre,  187  Fed.  224 75,  115 

Rumbell,  J.  E.,  148  U.  S.  i 142,  147 

Rupert,  213  Fed.  263 53 

St.  Clair  v.  U.  S.  154  U.  S.  134 199 

St.  Jago  de  Cuba,  9  Wheat.  (U.  S.)  409 132 

Sandberg  v.  McDonald,  248  U.  S.  185 65 

Sandringham,  10  Fed.  556 182,  187 

Scotland,  118  U.  S.  507 123 

Scotland,  105  U.  S.  24 124 

Scotia,  14  Wall.  (U.  S.)  170 158 

Seabrook"  v.  Raft,  40  Fed.  596 3,  148 

Shawnee,  45  Fed.  769 58 

Sheehan  v.  Dalrymple,  19  Mich.  239 30 

Sherlock  v.  Ailing,  93  U.  S.  99 33 

Shooting  Star.     See  Wm.  H.  Webb,  14  Wall.  (U.  S.)  406 168 

Skinner,  248  Fed.  818 188 

Smith  V.  Burnett,  173  U.  S.  430 211 

South  Coast  S.  S.  Co.  v.  Rudnbach,  251  U.  S.  519 133 

Southern  Pacific  Co.  v.  Jensen,  244  U.  S.  205 56 

Southern  Pacific  Co.  v.  Ky.  222  U.  S.  632 15 

Southwark,  191  U.  S.  i 122 


TABLE  OF  CASES  297 

PAGE 

Spedden,  184  Fed.  283 53 

Spedden  v.  Koenig,  24  C.  C.  A.  189 ;  78  Fed.  504 37 

Sprott,  70  Fed.  327 no 

Stach  Clark,  54  Fed.  533 201 

Steamship  Co.  v.  Schmidt,  241  U.  S.  245 68 

Strathearn,  239  Fed.  583 68 

Strathearn  S.  S.  Co.  %\  Dillon,  252  U.  S.  348 65 

Stratton  v.  Jarvis,  8  Peters  (U.  S.)  4 186 

Sturgis  V.  Boyer,  24  How.  (U.  S.)  no 170,  179 

Sumner  v.  Caswell,  20  Fed.  249 85 

Sun  Printing  &c.  Association  v.  Moore,  183  U,  S.  642 109 

Syn\cuse,   18  Fed.  828 161 

Syracuse,  The,  12  Wall.  (U.  S.)  167 168 

Tabor  v.  U.  S.,  i  Story  i 14 

T.  A.  Goddard,  The,  12  Fed.  174 104 

Tamplin  Steamship  Co.  v.  Anglo-Mexican  Products  Co.,  Ltd.,  2 

A.  C.  397  108 

Teutonia  v.  Erlanger,  248  U.  S.  521 182 

Tornado,  108  U.  S.  342 78 

Trans,  Co.  v.  Wright,  13  Wall.  (U.  S.)   104 124 

Transportation  Co.  v.  La  Compagnie  Generale  Transatlantique, 

182  U.  S.  406 178 

Transportation  Co.  v.  Pearsall,  90  Fed.  435 185 

Trigg,  37  Fed.  708 53 

Troop,  1 18  Fed.  769 59 

Tucker  v.  Alexandroff,  183  U.  S.  424,  438 5 

United  States  v.  Ansonia  Co.,  218  U.  S.  452 ii 

United  States  v.  Forester,   Newb.   Adm.   81 24 

United  States  v.  Willings,  4  Cranch.  (U.  S.)  48 23 

Valencia,  165  U.  S.  264 131 

Vauban.     Sec  Liverpool  &c.  Navigation  Co.  v  Brooklyn  Eastern 

Dist.  Terminal,  U.  S.  Supreme  Court  Advance  Sheets,  85.  ..  170 

Vincent  v.  Company,  109  Minn.  456 215 

Western  States,  151  Fed.  929 80 

White's  Bank  v.  Smith,  7  Wall.  (U.  S.)  646 24 

Wildcroft,  201  U.  S.  378 85,  122 

Wm.  Bagaley,  The,  5  Wall.  (U.  S.)  377 26,  28^     29 

William  Brown.    See  Holmes,  i  Wall.  Jr.  i,  2(i  Fed.  Cas.  No.  15, 

383   194 

Wm.  H.  Webb,  14  Wall.  (U.  S.)  406 168,  179 

Willings  V.  Blight,  2  Pet.  Adm.  288,  30  Fed.  Cas.  No.  17.765 29 

Wilson  V.  Charlestown  Pilots'  Association,  57  Fed.  227 175 

Wisconsin.    See  Sturgis  v.  Boyer,  24  How.  (U.  S.)  no 170,  179 


298  TABLE  OF  CASES 

PAGE 

Woodall  V.  Dempsey,  100  Fed.  613 , . .     37 

Yankee  Blade,  19  How.  (U.  S.)  82 127 

Yarkand,   120  Fed.  887 53 


INDEX 


(The  references  are  to  pages.) 


Abandonment,   of  cargo  on  dis- 
aster, 75 
to  creditors,    114 
to  insurers,  123 
to  underwriters,  113 
of  seamen,  197,  252 
Accounting,  compellable  by  part 

owners,  30 
Acts  of  Congress: 
June  26,   1884  (23  St.  at  L.), 

70,  116 
August  19,  1890  (26  St.  at  L. 

320),  63 
September  4,   1890    (26   St.   at 

L-  425).   158 
February   13,   1893    {zj   St,  at 

L-  445),  70,  72 
February   18,    1895    (28   St.  at 

L.  667),  252 
December  21,   1898  (30  St.  at 

L-  755).   196,  249 
March  3,   1899    (30   St.   at  L. 

1 151),  206,  209 
April  22,   1908    (35    St.   at   L, 

65),  57 
March  4,   1909    (35   St.   at  L. 

1088,  1142),  196 
April    5,    1910    (36    St.    at    L. 

291).  57 
June  24,    1910    (36   St.    at   L. 

629),  141,  200 
August   I,   1912   (37   St.  at  L. 

242),  187 
August  24,  1912  (37  St.  at  L. 

560),  229 
August  18,  1914  (38  St.  at  L. 

698),  229,  246 
March   4.   191 5    (38   St.   at   L. 

1 164),  56,  245,  247-252 
August  29,  1916  (39  St.  at  L. 


September  7,   1916   (39   St.  at 

L.  729),  231,  260,  261 
June  7,  1918  (40  St.  at  L.  602), 

258 
February  9,  1920,  16,  219 
March   30,    1920,   83,   84,    157, 

250 
June  5,  1920,  12,  17,  18,  19,  27, 
64,  79,  128,  130,  131,  135, 
141,   200,   214,   232,   238- 
240,  250,  261,  263-289 
See     also     Revised     Statutes: 
Compiled  Statutes,   1916; 
Bills     of     Lading     Act; 
Harter     Act;     Loss     of 
Life  Act;  Panama  Canal 
Act ;     Merchant     Marine 
Act ;       Ship       Mortgage 
Act;  Standby  Act. 
Acts  of  God,  89 

Adjuster,  in  general  average,  191 
Admiralty.    For  specific  subjects, 

see  particular  titles 
Admiralty   Courts.     See   Courts 
Admiralty    Law,    sources,    gen- 
eral,  I 
in  United  States,   i 
Admiralty  remedies.     See  Reme- 
dies 
Admiralty    Rules,    general,    14 
Advances    of    wages    {see    also 

Wages) ,  247,  248 
Advances  on  bottomry,  141 
Adventure.    See   Frustration    of 

adventure 
Affreightment,    contract    of,    de- 
fined, ']'],  78 
reciprocal       obligations      of 
ship  and  cargo,  34,  35 
See  also  Contracts  of  affreight- 
ment 


299 


300 


INDEX 


Agency,  of  master,  right  to  dele- 
gate, 49 
for  temporary  owner  or  char- 
terer, 33 
Agent,  managing, 

responsibihty  of  owner  for,  31 
Alaska     Railroad,     under     Mer- 
chant Marine  Act,  2Tj 
Alaska,  trade  with,  coastwise,  14 
under    Merchant    Marine   Act, 
277 
Aliens,     defined,     in     Merchant 
Marine  Act,  288 
sales   of   Shipping   Board   ves- 
sels  to,   under   Merchant 
Marine  Act,  266,  267^ 
American    Bureau    of    Shipping, 
under    Merchant    Marine 
Act,  276 
Anchorage,  215,  216 
Anchors,  included  in  sale,  23 
Antitrust  laws,  marine  insurance 
associations  exempt  from, 
under    Merchant    Marine 
Act,  278 
Antwerp,  York-Antwerp  Rules,  7 
Appurtenances,  what  included  in 

sale,  23 
Arbitration   clause,   not  enforce- 
able, 107 
Arrest  of  passengers,     42 
Arrival  and  discharge,  76 
Arrived  ship,   106 
Arson,  maritime,  196 
Articles,  shipping.    See  Shipping 

articles 
Assaults,  196 

on  seamen,  61 
Association,     defined,     in     Mer- 
chant Marine  Act,  278 
Attorneys,  employment  by  Ship- 
ping  Board,   under   Mer- 
chant Marine  Act,  265 
Austrian  vessels,   sale   of,  under 
Merchant     Marine     Act, 
266 
Average.     See    General    average 
Bankruptcy,   of   shipbuilder  dur- 
ing construction,  11 
Bare  boat  charter,  loi 
Barges,  inspection  of,  255 
whether  ships,  3 


Barratry,  199,  200,  252 
Bathhouse,  floating,  a  ship,  3 
Berths,  separate  for  seamen,  249 
Bills    of    lading,    Chapter    VII, 
86-1 r I 
holder's  claim  to  goods,  76 
liability  of  owner  for  cargo  not 

received,  31 
limitations   on,   76 
limitation  of  master's  authority 

to  bind  owner.  41 
limitation  on  master's  right  to 

issue,  45 
not  contracts  of  affreightment, 
when,  34 
Bills    of    sale,    not    required    for 
documentation,  236 
recording,  237,  238 
recording*,      under      Merchant 
Marine  Act,  278,  279 
requirements,  236 
Blockade,  violation  of,   195 
Boats,  included  in  sale,  23 
Boilers,  included  in  sale,  23 
Bonds.  See  Mortgages  and  bonds 
for   release   of   ship,  220 
for  safe  return,  when  compel- 
lable, 28,  29 
Bottomry  bond,  defined,  138 

nature  and  incidents  of,  138-140 
Bowsprit,  included  in  sale,  23 
Breach  of  charter,  106,  107 
Breakage,  exception  of,  99 
Breakdown  clause,  102,  103 
Builder's  lien,  136 
Bunkers,     liability     for,     during 
temporary   ownership,   33 
Cables,  included  in  sale,  23 
Captain.     See  Master 
Capture.     See  Prize  of  war 
Cargo.     See  Affreightment,  con- 
tracts of;  Lien,  etc. 
damage    to,    in    collision,    152 

156 
deck,  in  general  average,  191 
discharge  of   {see  Arrival  and 

discharge) 
injury  to,  personal  liability  of 

master,  41 
loading  and  stowage  of,  72-75 
master's  relation  to,  44-47 


INDEX 


301 


not      involved     in     forfeiture, 

when,  195 
on  wreck,  owner's  rights,  206 
out  and  back,  91 
reciprocal  .obligations   of   ship 

and  cargo,  34,  35 
shipper   must   disclose   charac- 
ter, 72,  73 
unlawful,    annuls   charter,    107 
Cargo  vessels,  provision  of  Mer- 
chant Marine  Act,  276 
Carpenter,    master.    See    Master 
carpenter 
ship's,  lien  for  wages,  62 
Carpenter's  certificate,  232 
Carriage    by    sea.    Chapter    VI, 

69-84 
Carriers,    common    and    private, 
defined,  69 
liability  of,  69,  70 
Certificate.    See  Carpenter's  cer- 
tificate.  Surveyor's  certi- 
ficate.   Inspection   certifi- 
cate 
Cesser  clause,  103 
Changes,  in  structure,  to  be  re- 
ported, 16 
Charter    parties.     Chapter    VII, 
86-1 1 1 
efifect  on  lien,  133 
master  must  not  alter,  45 
notice  to  creditor,  when  avoids 
lien,  33 
Charter    rates.    Emergency    Act, 
repeal    of,    in    Merchant 
Marine  Act,  263,  264 
Charterer,   agent  of,  may  create 
lien,  under  Merchant  Ma- 
rine Act,  285 
liability,  113 

liability  as  temporary  owner,  33 

may  create  lien  on  vessel,  when, 

under    Merchant    Marine 

Act,  285 

Chartering  Executive  Committee, 

86 

Chartering   of   vessels,   authority 

of  Shipping  Board,  under 

Merchant  Marine  Act,  267 

Chronometer,  included  in  sale,  23 

Circuit    Court   of   Appeals.    See 

Courts 


Citizens,  who  are,  25 

defined    in    Merchariit    Marine 
Act,  288 
Citizenship,  of  owner   {^see  also 
Corporations),  12,  13,  25, 
27 

of  master,  25,  39 

of  pilots,  13 

of  watch  officers,  13 
Claim,  notice  of,  100 
Classification  of  Shipping  Board 
vessels    under    Merchant 
Marine  Act,  276 
Clearance.    See  Entry  and  clear- 
ance 
Coastwise    trade,    Alaska,    under 
Merchant     Marine     Act, 
277 

corporate  owner,  stock  control, 
28 

forfeiture  for  violation,  1951 

insular  possessions,  executive 
control,  under  Merchant 
Marine  Act,  274 

investigation  of  ports,  etc.,  by 
Shipping  Board,  under 
Merchant  Marine  Act, 
268 

Philippine  Islands,  not,  under 
Merchant  Marine  Act, 
274 

provisions  of  Merchant  Ma- 
rine Act,  277 

restrictions,  231,  232 

vessels  to  engage  in,  13,  277 

via  foreign  port,  under  Mer- 
chant Marine  Act,  277 

voyages,  wages  on,  247 

what  is,   13,   14 
Code,  Federal  Criminal,  196 
Collector  of  Customs,  duties  with 
respect     to     recordation, 
under    Merchant    Marine 
Act,  279,  280 
Collision,  Chapter  XI,  148-158 

assistance  in  case  of,  252 

investigation  of,  244 

personal  liability  of  master,  41 

responsibility  of  pilot,  175 

when  a  peril  of  the  sea,  89 
Commanding  officer.    See  Master 


302 


INDEX 


Commerce,  Department  of,  repre- 
sentation    on     American 
Bureau       of       Shipping, 
under    Merchant    Marine 
Act,  276 
routes     to    be    estabUshed    by 
Shipping     Board,     under 
Merchant     Marine     Act, 
267 
Secretary    of,    authority    to 
regulate     recordation     of 
mortgages,      etc.,      under 
Merchant     Marine     Act, 
286 
may  remit  certain  fines,  un- 
der     Merchant      Marine 
Act,  276 
Commissioner  of  Navigation  (see 

also  Navigation),  259 
Commissioners.     See       Shipping 

commissioners 
Common  carriers.     See  Carriers 
Compass,   included   in   sale,  23 
Compensation,   just,   under   Mer- 
chant Marine  Act, 
Law.    See   Workmen's    Com- 
pensation Law,  264 
Competition,    Shipping   Board  to 
make    rules,    under    Mer- 
chant Marine  Act,  272 
Compiled    Statutes   1916: 
4554,  63 
7707,  25 
7778,  7779,  143 
7981,  173 
7990-7994,  187 
8020-8027,  115 
8029-8035,  93 
8036,  52 
8204-8208,  173 
8287-8297,  63 
8300-8314,  63 
8315-8337-A,  64 
8343-8376,  66 
9920,  206 
I 04 I 9-1 0444,  193 
10445-10462,   193 
10462-10469,  193 
10470,  203 
10470-10483,  193 
Congress,  Acts  of.     See  Acts  of 
Congress,    Revised    Stat- 
utes 


Consignee,  right  to  goods,  76 
Construction    loan,    fund    under 
Merchant     Marine     Act, 
269 
by      Shipping      Board,     under 
Merchant     Marine     Act, 
260 
Construction,  title  by,  10 
Contract,  maritime,  defined,  4 
status    of    ship    mortgages, 
141,  142 
shipbuilding,  10 

not  maritime,  11,  12 
liens  arising  out  of,  126 
of  master,  liability  of  owner,  31 
liability      of     temporary 
owner,  33 
seaman's,  55 

under      Emergency      Shipping 
legislation,    validated    by 
Merchant      Marine     Act, 
263,  264 
Contracts  of  affreightment.  Chap- 
ter VII,  86-111 
See    also    Affreightment,    con- 
tracts of 
Contribution,    in    collision    cases, 

155 
Contributory     negligence,     none 

in   admiralty,    156 
Control   of  ownership,   effect  on 
registry,   12,   25 
See  also  Corporations 
Corporal   punishment,    forbidden, 

56,  197,  252 
Corporate     owners,     privity     or 

knowledge  of,   118 
Corporation,    as    owner,    citizen- 
ship and  stock  control  of, 
13,  25,  27,  28,  123 
oath  for  documentation.  235 
under    Merchant    Marine   Act, 
288,  289 
Costs,  in   admiralty,  221 
Courts,  United  States: 

Circuit  Court  of  Appeals,  juris- 
diction,   2 
district,  jurisdiction,  2 
extent  of  judicial  power,  2 
state  courts,  jurisdiction,  2 
Supreme   Court,   U.    S.,   juris- 
diction, 2 


INDEX 


303 


Court  of  Claims,  suits  for  just 
compensation  under  Mer- 
chant Marine  Act  263, 
264 

Crew,  majority  owners  may  em- 
ploy  and   discharge,   28 
See     also  Seamen 

Crimes     at    sea,    Chapter    XIV, 
193-201 
offenses  of  seamen,  251,  252 

Criminal  Code,  Federal,  196 

Cruelty  to  seamen,  60 

Customs  duties.    See  Treaties 

Damage,  caused  by  pilot,  175 
division  of,  155,  156 
in  collision  cases,  151-157 
in  towage  cases,  168-170 
to    goods,    liability    for,    under 
charter,  104 
Day.  work,  248 
Dead   freight.     See   Freight 
Deadweight   tonnage.     See    Reg- 
ister tonnage 
Death  of  seaman,  250 

seaman's  right  of  action  under 

Merchant  Marine  Act,  287 

Deck  cargo,  in  general  average, 

191 
Deck  load,  y;^,  75 
Deck   officers,   245 
Delay  in  voyage,  78 
Delivery  of   ship,   title  by,    10 
Demise  of  ship,  when  charter  is, 
33,  91,   101-113 
where,    liability    for    damaged 
goods,  104 
Demurrage  {see  also  Freight  and 
demurrage),  105,  106 
defined,  jy 
lien  for,  127 
when  recoverable,  78 
Depreciation,  on  sale  of  Shipping 
Board       vessels,       under 
Merchant     Marine     Act, 
266 
Derelicts.     See  Wrecks  and  dere- 
licts 
Desertion,  55,  60,  251 
Despatch  money,  106 
Destruction  of  vessel  before  com- 
pletion, II 


Deviation,  master's  duty,  45,  51 
warranty  against,  88,  89 

Diligence  of  lienor,  rules  of,  127, 
128 

Directors  of  corporations,  powers 
of,  28 

Disaster,  master's  duties  on,  51 
seaman's  duties  on,  58 

Discharge  {See  Arrival  and  dis- 
charge) 
of  seamen,  60 

Disobedience,  251 

Displacement.    See  Register  ton- 
nage 

Dissolution  of  charters,   107-110 

District  courts.    See   Courts 

Division       of       damages.      See 
Damages 

Docks,     German     port     facilities 
turned   over  to    Shipping 
Board  by  Merchant  Ma- 
rine Act,  271 
insurance   of,   under  Merchant 

Marine  Act,  269 
investigation    of,    by    Shipping 
Board,    under    Merchant 
Marine  Act,  268 

Documentation  of  vessels,  proce- 
dure for,  232-235 
See  also  Registry 

Documents,    surrender    and,    re- 
issue of,  236,  239 

Domicile    of    owner,    for    regis- 
try, 14 
See    also    Citizenship,    Nation- 
ality,   Corporation 

Dredge,     subject     to     admiralty 
jurisdiction,  2 

Drydock,  floating,  not  a  ship,  3, 
180,   181 
insurance  of,  under   Merchant 

Marine  Act,  269 
maritime  lien  for  use  of  under 
Merchant     Marine     Act, 
285 

Duties,  customs.     See  Treaties 

Effects,  seamen's,  66 
Embezzlement,   197 
Emergency     Fleet     Corporation, 
261 


304 


INDEX 


provisions    of    Merchant    Ma- 
rine  Act   with    reference 
to,  288 
Emergency  Legislation  Rate  Act 
repealed,  264 
Shipping  Act  repealed,  263,  264 
validation  of  agreements,  263 
Enemy     port     facilities,     turned 
over   to    Shipping    Board 
under    Merchant    Marine 
Act,  270,  271 
Engineer,  when  an  officer,  246 
Engines,  included  in  sale,  23 
Enrollment,  defined,  12 
form  of,  231 
when  to  be  made,  12 
Entry  and  clearance,  241 
Equipment,    managing   owner   to 

direct,  36 
Exceptions  in  bills  of  lading,  99 
Excess   profits   tax,    proceeds   of 
sale  exempt,  under  Mer- 
chant Marine  Act,  275 
vessels    exempt,    under    Mer- 
chant Marine  Act,  275 
Exchange,  title  by,  10 
Executors,  sales  by,  18,  19 
Explosives,  73 
on  passenger  ships,  offense,  197 

False  lights,  197 

Fares,  through,  on  American 
ships,  under  Merchant 
Marine  Act,  277 

Federal  Compensation  Act,  57 

Federal  Criminal  Code,  196 

Fees,  navigation,  258 

Fellow  servant,  master  not,  250 

Felony,  defined,  193 

Fighting  ships,  forbidden,  79 
provision  of  Merchant  Marine 
Act,  273 

Finders,  rights  of,  207,  208 

Fines,  Secretary  of  Commerce 
may  remit  certain,  under 
Merchant  Marine  Act, 
276 

Fire,  89,  90,  115,  116 

Fire  insurance  on  vessels  pur- 
chased from  Shipping 
Board,  under  Merchant 
Marine  Act,  269 


Firemen,  hours  of  labor,  248 
Flag,  229 

transfer  of,  17,  23 
Floats,  whether  ships,  3 
Flogging,  abolished,  42,  59 
Flotsam,  202 
Fog,     collision     in,     precautions 

against,  149,  150 
Foreclosure       of        mortgages, 

145-147 
under    Merchant   Marine   Act, 
283 

Forfeiture,  195 

on  sale  to  alien,  17 
under    Merchant    Marine   Act, 
priority  of  mortgage  lien, 
284 

Forfeitures  and  punishments  of 
seamen,  55,   56 

Foreign  built  vessels  (see  also 
Vessels,  Registry,  Coast- 
ing trade),  may  engage  in 
coasting  trade,  when, 
under  Merchant  Marine 
Act,  274 

Foreign  laws,  Shipping  Board  to 
make  rules  to  meet,  under 
Merchant  Marine  Act,  272 

Foreign  liens,  136 

Foreign  market  prices  to  be  con- 
sidered in  sale  of  Ship- 
ping Board  vessels,  under 
Merchant  Marine  Act,  266 

Foreign  ships,  American-built 
recording  of,  16 

Foreign  trade,  regulations  gov- 
erning shipping  in,  under 
Merchant  Marine  Act, 
272 
Shipping  Board  to  establish 
new  routes,  under  Mer- 
chant Marine  Act,  267 

Foreign  vessels,  right  to  coast 
repealed  by  Merchant 
Marine  Act,  2yy 

Foreigners,  sale  of  vessels  to, 
provisions  of  Merchant 
Marine  Act,  266,  267 

Frauds,  of  temporary  owner, 
when  owner  liable,  34 

Freight,  defined,  43,  yy,  86 
dead,  91 


INDEX 


305 


Hen  for,  78,  127 

loss  of  in  collision,  162 

master's  lien  upon,  43 

when  earned,  91 
Freight  and  demurrage,  jy 
Freight  rates,  export,  on  Ameri- 
can  vessels,   under   Mer- 
chant Marine  Act,  277 

import,  under  Merchant  Ma- 
rine Act,  277 

investigation  by  Shipping 
Board,  under  Merchant 
Marine  Act,  268 

through  reduced,  restricted  by 
Merchant     Marine     Act, 

unfair,  79 

War  Emergency  Act  repealed, 
264 
Frustration!   of    adventure,    107, 

108 
Fuel,  lien  for,  125 

General  average,  189-192 
origins,  7 

preferred  maritime  lien  for, 
under  Merchant  Marine 
Act,  280,  283 

German   vessels,  turned  over  to 
Shipping   Board,  266 
sale    of    authorized    by    Mer- 
chant   Marine    Act,    2.(ib, 
267 

Gift,  title  by,   10 

Great  Lakes  Rules,  150 

Guam,  registry  of  vessels  trading 
with,  12 

Guardians,  may  be  owners,  25 

Harter  Act  act,  70,  72,  1 19-122 
public  vessels  entitled  tb  bene- 
fit    of,     under     Merchant 
Marine  Act,,  266,  267 

Hawaii,  foreign  vessels  may 
carry  passengers  from,  to 
United  States  under  per- 
mit, under  Merchant 
Marine  act,  274,  275 
trade  with  coastwise,  14 

Hawsers,  length  of,  254 

Heat,  exception  of,  99 

Home  port,  233,  234 


defined,  12 

fixed  by  registry,  14,  15 
limitation    on    manager's    au- 
thority when  vessel  in,  37 
maritime     lien      for     supplies 
furnished  in,  under  Mer- 
chant   Marine    Act,    285 
persons     authorized     by     Mer- 
chant    Marine     Act     to 
create  liens  in,  285 
Hospital  accommodations  for  sea- 
men, 250 
Hours  of  labor  at  sea,  248 
Houses,   sale   of,   by   Emergency 
Fleet  Corporation,  author- 
ized by  Merchant  Marine 
Act,  270 
Housing   law    repealed   by   Mer- 
chant Marine  Act,  270 
Husband,  ship's,  defined,  36 

Import  rates,  provisions  of  Mer- 
chant Marine  Act,  277 
Income   tax,    vessels    in    foreign 
trade  exempt  from  under 
Merchant  Marine  Act,  275 
Individuality  of  ship.     See  Per- 
sonality, Vessel 
Injuries.     Sec    personal    injuries 

Passengers,  seamen 
Inspection,  certificate  of  outstand" 
ing»  235 
of  vessels,  244,  255,  259 
Insurance,  charter  provision  for, 
102 
effect  of  limitation  of  liability 

on,  123 
in  collision  cases,  157 
Insurance,    fire,   on  vessels  pur- 
chased     from      Shippinjg 
Board     under     Merchant 
Marine  Act,  269 
Insurance,    marine,    associations 
exempt       fom       antitrust 
laws  by  Merchant  Marine 
Act,  278 
purchaser   of    Shipping   Board 
vessel  to  provide,  268 
Shipping     Board     vessels,     fund 
for,  under  Merchant  Ma- 
rine Act,  269 


3o6 


INDEX 


Insurance  company,  marine,  de- 
fined in  Merchant  Marine 
Act,  278 
Insurance  of  cargo,  75 
Interest,  on  mortgages,  239 
on  preferred  mortgages  under 
Merchant     Marine     Act, 
281 
on   purchase    price   of   vessels 
under    Merchant    Marine 
Act,  266 
Interlocutory  sales,  221 
International  Rules,  150 
Interstate     Commerce     Commis- 
sion, 261 
power  over,  through  rate  rule 
under    Merchant    Marine 
Act,  2TJ 
Intervenors,  221 

Investments   of   Shipping  Board, 
under    Merchant    Marine 
Act,  270 
Jetsam,  202 
"jettison,  190,  191 

master's  duty,  46 
Joint   rates,   provisions   of   Mer- 
chant Marine  Act,  277 
Judicial    power,    extent   of.     See 

Courts 
Jurisdiction,     Admiralty.        {See 
also  Courts),  218,  219 
concurrent,  over  crimes,  197, 

198 
criminal,  193,  194 
ships  subject  to,  2 
ships  under  construction  not 

subject  to,  2,   II,   12 
shipbuilding     contracts     not 
territoriality    of    vessels    for 
subject  of,  II,  12 
purposes  of,  15 
waters  subject  to,  3,  4 
wrecks  subject  to,  204 
of  foreclosure,  under  Merchant 

Marine  Act,  283,  284 
of  injuries  to  seamen,  58 
of    offenses    under     Merchant 
Marine   Act,   282 
Jury    trial,     seaman's     right    to, 
under    Merchant    Marine 
Act,  287 


Laches   in   enforcing  liea,   effect 

of,  134 
LaFollette     Seamen's    Act.    See 

Seamen's  Act 
Language  of  seamen,  246 
Larceny,  196 
Lay  days,  105,  106 
Leakage,  exceptions  of,  99 
Liabilities  and  limitations,  Chap- 
ter VIII,  1 12-124 

LiabiHty,  limits  of,  5 

of  carrier,  duration  of,  99 
limitation     of,     by     temporary 

owner,  33 
of  ship,  when  pilot  in  charge, 
177,   178 
Libel",  219,  220 
License,  form  of,  231 
master's,  39,  40 
officers',  244 
vessels,  12 
Lien,  maritime,  Chapter  IX,  125- 

137 
for  breach  of  charter,  107 

for    collision    damage,     156, 

157 
for  freight  and  charter  hire, 

103 
for  pilotage,  175 
for  salvage,    181,   i82f 
for  towage,  160 
for  wages,  55,  61,  63 

not  assignable,  248 
of  landowner,  on  wreck,  205 
of  managing  owner,  37 
of  master,  44 
of  part  owners,  30 
of  wharfinger,  214 
divested  on  master's  sale,  19 
failure    to    disclose,    offense, 

200 
master's  power  to  create,  50 
mortgages  may  create,  when, 

113 

of  bills  of  lading  and  con- 
tracts of  affreightment, 
34-36 

right   af    mortgagee   to  dis- 
charge, 144,   145 
Lien,  mechanics,  136 


INDEX 


307 


Lien,  under  Ship  Mortgage  Act, 
discussed,  239,  240 
provisions    of    Ship    Mortgage 

Act,  278-286 
See  also  Ship  Mortgage  Act 
Life,   loss  of.     See  Loss  of  life 
Lifeboat  men,  246 
Life-saving  equipment  on   cargo 
vessels,      provisions      of 
Merchant     Marine     Act, 
276 
Ligan,  202 
Lights,  false,  197 
Limitations.     See  Liabilities  and 

limitations 
Limitation  of  liability 
by  temporary  owner,  33 
in  collision  cases,  157 
proceedings,  222 
in  loss  of  life,  84 
Limitation  on  prosecutions,  198 
Loading  and  stowage,  72-75 
Loans.    Sec     Construction     loan 

fund 
Log  book,  contents,  52 

disciplinary  facts  to  be  entered, 

42 
requirements.  52 
Logs.     Sec  Raft 

Longshoremen,    lien    for    wages 

{see  also  Stevedore),  62 

Loss  of  life,  157 

Act  of  March  30,  1920,  83,  84, 

157.  250 

Loss  of  vessel  before  completion, 

effect  on  title,  11 
Loss  or  damage  to  goods,  liability 
for,  under  charter,  104 

Machinery,  included  in  sale,  23 

Mails,  to  be  carried  in  American 
vessels,  imder  Merchant 
Marine  Act,  275,  276 
contract  not  to  be  sublet  to 
foreigners,  provision  of 
Merchant  Marine  Act,  275 
Postmaster  General  to  make 
contracts,  under  Merchant 
Marine  Act,  275 

Maiming,  196 

Majority  interest,  when  control- 
ling, 28 


Managing  agent,  36 

Managing  owner,  authority,  du- 
ties and  rights,  36,  37 

Manslaughter,  196 

Marine  insurance.  See  Insur- 
ance 

Marine  Insurance  Associations, 
exempt  from  antitrust 
laws  by  Merchant  Ma- 
rine Act,  278 

Marine  Insurance  Company,  de- 
fined in  Merchant  Marine 
Act,  278 

Marine  railways,  lien  for  use, 
provision  of  Merchant 
Marine  Act,  285 

Maritime  Law,  sources,  i 

Maritime  Hens.     See  Liens 

Married  women,  may  be  owners, 

25 
Master,  Chapter  IV,  39-53 

agency  for  all  parties  in  case 

of     wreck,     agency     for 

owner   under   charter,   91 
agency    for    temporary    owner 

or  charterer,  33 
agent    for   underwriter,   when, 

113 
authority  to  sign  bills  of  lad- 
ing, 36 
bills  of  lading  signed  by,  liabili- 
ty on,  91 
cargo,  duty  to  deliver,  76 
citizenship  of,  25 
contracts  of  affreightment,  ef- 
fect of,  34-36 
disciplinary  powers,  40 
duties  in  loading  and  stowage, 

72 
duty  as  to  shipping  articles,  243 
duty  to  deliver  cargo  to  con- 
signees, 76 
license  of,  244 
majority    owners    may    employ 

and  discharge,  28 
name  to  be  reported,  16 
oath  of,  for  documentation,  235 
owner's  authority  over,  30 
penalty    for    failure   to   exhibit 
documents     under     Mer- 
chant Marine  Act,  282 


3o8 


INDEX 


pilot,  relation  to,  174 

right  to  sue  in  collision  cases, 

157 
sales  by,  19-22 
salvor,  185 

seamen,  power  to  punish,  61 
shipping  articles,  duty  as  to,  243 
wreck,  agency   for  all  persons 
in  case  of,  75 
Master   carpenter,   certificate  of, 

for  registry,  14 
Masts,  included  in  sale,  23 
Mate,  license  of,  244 

not  to  punish  seamen,  61 
Mechanic's  liens,  136 
Medicines,  67 

♦Merchant   Marine   Act,  June   5, 
1920,  discussed,  142-147 
text  of,  263,  289 
Merchant  vessels,  annual  list  of, 

258 
Minority     interest     may     compel 
majority  to  give  bond,  28, 

right  to  use  ship,  29 
Misdemeanors,  193 
Mississippi  Valley  Rules,  159 
Moorage.     Sec     Wharfage     and 

moorage 

Mortgage     of     cargo,     master's 
rights  47 

Mortgagee,  liability  of,  113 

Mortgages    and    bonds,    Chapter 
X,  138-147 

Mortgages,  new  to  be  given  after 
admiralty  sale,  18 
of  ship  at  sea,  22,  23 

Mortgages,   preferred,   provisions 
of     Ship    Mortgage    Act 
(§30     Merchant     Marine 
Act),  278-286 
discussed,  238 

Mortgages,  recording  of,  provi- 
sions of  Ship  Mortgage 
Act  (§30  Merchant  Ma- 
rine Act),  279-282,  286 

Motor  boats,  numbering  of,  258 

*The  several  subjects  treated  of  in 
throughout    this    index,    with    page 


Murder,  196 

Mutiny,  60,  197,  200,  201,  251 

Name,  change  of,  16,  240 

forfeiture  for  change  of,  195 
marking   of,   233,   234 
Nationality,   of  owner    (see  also 
Corporations),   13,  25,  27 
of  master,  25 

of  officers  and  crew,  246,  247 
of     ship.     See     Registry,     and 

Flag 
who  are  nationals,  25 
Naval  service,  vessels  in  exempt 
from    Merchant    Marine 
Act,  266 
Navigation,  Commissioner  of,  259 
to  authorize  change  of  name, 
16 

Navigation  fees,  258 
Navigation    laws,    how    adminis- 
tered, 259 
Negligence  in  collision.   148,   149 
liability  for,  during  temporary 

ownership,  33 
of    master,    liability    of   owner 
for,  31,  32 
liability  of  temporary  owner 
for,  33 
liability  of  pilot  for,  175 
liability  of  tug  for,  165,  166 
proof  of,  in  collision  cases,  158 
in  towage  cases,  155,  156 
Negotiability   of   bills   of   lading, 

98,  99 
Neutrality,   violation  of,  offense, 

197 

Note.     See  Promissory  note 

Notice,  lien  independent  of.  127 

of  admiralty   sale  by  marshal 

18 

of  claim.     See  Claim 

Number.    See     Official     number 

Offenses.     See     Crimes     at     sea 

of  seamen,  59 
Officers,  deck,  245 

nationality,  247 

this  act  are  indexed  under  their  titles 
references    to   the   text   of   the    act. 


INDEX 


309 


qualifications,  244-247 
Official  number,  233,  234 
Official  tonnage,  233 
Oilers,  hours  of  labor,  248 
Oleron,  Rules,  7 

laws,  173 
Overloading,  73 
Owner,  domicile  of,  for  registry, 

14 
duty  of,  to  provide  competent 

master,  39 
liability  of,  112,  113 
oath     of,     for    documentation, 

235 
privity      or     knowledge       of, 

116-118 

remedies  of,  220 

single   ship  companies,   123 

as  salvor,  185 

of  wreck,  liability  of,  205 

rights,  of.  206 

Owners   and   managers,   Chapter 

in,  25-38 

Ownership,  control  of,  effect  on 
registry.  See  Corporations 
Ownership,   record  title  not  con- 
clusive of,  36 
temporary,    rights    and    liabili- 
ties, 33 

Panama  Canal  Act   (August  24, 

1912),  229 
Panama  Canal  Zone,  trade  with 

not  coastwise,  14 
Panama   Railroad,   ships   subject 

to  suit,  219 
Parole,  sale  by,  10,  20,  22,  23 
Part  owners,  25,  26 
not  partners  generally,  25 
suits  between,  30 
obligations  of,  30 
Particular  average,  189 
Partition,  suit  for,  30 
Partners,  part  owners  not,  25 
may  own  vessel  as  partnership 
property,   25-27 
Passengers,    assault    on,    liability 
of  owner,  31 
carriage  of,  79,  80 
damage  in  collision,  154,  155 
from  Hawaii  in  foreign  ships. 


under   Merchant    Marine 
Act,  275 
limitation  of,  on  cargo  vessels 
under     Merchant   Marine 
Act,  276 
loss  of  life,  83,  84 
master's  authority  over,  41 
personal  injuries  to,   81-83 
not  salvor,  183 
seduction  of,  252 
to  be  notified  of  dangers  under 
Merchant     Marine     Act, 
276 
Peril  of  the  sea,  exception  of,  89 
liability  for,  under  charter,  104 
Penalties   and    forfeitures,    195 
Penalties   under    Ship    Mortgage 

Act,  282 
Personal   injuries   to   passengers. 

See  Passengers 
Personal  injuries,  of  seamen,  56- 

58,  287 
Personality  of  ship,   5,   112,   114, 

195 
Philippine     Islands,     may     make 
registry  rules  under  Mer- 
chant Marine  Act,  274 

not  coastwise  under  Merchant 
Marine  Act,  274 
whether  coastwise,   14 
Pilot,  citizenship  of,  13 

licenses  of,  244 

master  to  remain  in  command, 

43 

when  salvor,  184 

Pilotage.    See  Towage  and  pilot- 
age. Chapter  XII,  159-179 
appendix  on,  253,  254 
extra,  ordered  by  master,  own- 
er's liability,  31 
liability  of  master  for,  41 

Piracy,  I95-I99 

Place  of  trial,  of  offenses  at  sea, 
194 

Plundering,  197 

Port  captain,  36 

Port  facilities,  effect  of  freight 
rates  on,  investigation  by 
Shipping  Board,  under 
Merchant  Marine  Act,  268 


310 


INDEX 


Port  of  registration.     See  Home 

port 
Porto  Rico,  trade  with  coastwise, 

14 
Possession,    evidence    of    owner 
_  ship,  25 
lien  independent  of,  127 
Preferred  lien.     See  Liens 

foreclosure     of,     under     Ship 
Mortgage  Act,  283 
Preferred  morgages.     See  Mort- 
gages 
forclosure  of,  146,  147 
incidents  of,  141-143 
transfer  of,  145 
Preferred       mortgage       vessels, 
128-131 

Prices,  market,  foreign,  to  be  con- 
sidered in  sale  of  Shipping 
Board  vessels,  under  Mer- 
chant Marine  Act,  266 

Princes,  restraint  of.  See  Re- 
straint of  princes 

Priorities  in  liens,  {see  also 
Liens),   i 29-1 31 

"Privity  or  knowledge,"  116,  117 

Prizes  of  war,  when  entitled  to 
registry,  12 

Process,  220-222 

Proctor,  220 

Promissory    note,    master's    not 

binding  on  owner,  41 
Protest,  cost  of,  152 

described,  52 

form  of,  290 

shipper  entitled  to  copy,  76 
Propulsions,  lien  for,  125 

scale  of,  249 

when  included  in  sale,  23 
Punishment,  corporal,  197 

of  seamen   {see  also  Seamen), 

55.  56 
Purchase,  title  by,  10 

Radio  telegraph,  failure  to  carry 
{see  also  Wireless),  200 
Raft,  whether  a  vessel,  2 
Railroads,    freight   rates,   investi- 
gation by  Shipping  Board 
under    Merchant    Marine 


Act,  268 
reduced,      restriction      upon 
under    Merchant    Marine 
Act,  2yy 
Rape,  196 
Rates.     See  Freight 

export,    on    American    vessels 
under    Merchant    Marine 
Act,  277 
freight      and      charter.      War 
Emergency  Act  repealed, 
264 
freight,  unfair,  79 
import,  provisions  of  Merchant 
Marine  Act,  2yy 
Readiness,  106 

Receiver,  in  preferred  lien  fore- 
closures  under   Merchant 
Marine  Act,  283 
Record    title,    not    conclusive    of 

ownership,  36 
Recording,    American-built    for- 
eign ships,  16 
liens.     See  Liens 
mortgages     {see     also     Mort- 
gages), 144 
Redelivery  of  vessel  under  char- 
ter, 102 
Redocumentation,  241 
Register,   form  of,  231 
Register  tonnage,  256 
Registration    and    regulation    in 

general,  10 
Registry,  general,  228,  229 
and  flag,  229 

change  of,  to  foreign,  approval 

of  Shipping  Board,  17,  27 

coastwise  trade,  vessels  entitled 

to  engage  in,  13 
control,  American,  of  corporate 

owners,  13 
copy  to  be  included  in  bill  of 

sale,  17 
corporate  ownership,  American 

control,  13 
defined,  12 

domicile  of  owner,  14 
ownership  by  citizens,  13 
procedure   {see  also  Documen- 
tation), 14 
surrender,   on   sale   of   ship   at 
sea,  23 


INDEX 


311 


vessels  entitled  to,  12,  229-231 
Regulations,  navigation,  150 
Remedies,     Admiralty,     Chapter 

XVII,  218-222 
Repairs,  liability  for,  during  tem- 
porary ownership,  33 
lien  for,  125,  131 
in  home  port,  under  Merchant 

Marine  Act,  285 
majority    owners    may    pledge 

vessel  for,  28 
managing  owner  to  make,  36 
to  wrecked  vessel,  to  entitle  her 
to  registry,  12 
Replevin,  of  wreck,  206 
Representations  prior  to  sale,  23, 

24 
Requisition,     of     vessels     under 
Merchant     Marine     Act, 
270 
War  Emergency  Act  repealed, 
264 
Residence  of  owner,  for  registry 
{see       also     Citizenship, 
Corporations,    Nationali- 
ty), 14 
Respondentia,  defined,  138 

incidents  of,  140,  141 
Restraint  of  princes,  90,  108,  109 
Revised  Statutes,  Sections: 

4139,  39,  40 

4141,  12 

4142,  4147-4153,  4155,  14 
4170,  10,  17 
4180-4184,  16 

4282,  70,  89,  90 

4283,  70 

4284,  115 

4285,  70,  115 

4286,  70,  113,  115 

4287,  4288,  4289,  70 

4319,  14 
4439,  40 
4445,  40 
4450,  40 
4501-4612  (Title  LIII),  56 

4511,  55 
4528,  55 
4564,  41 
4569,  41 
4581.  56 
4596,  56 


4612,  54 

5363,  41 
Revolt,   197 

River  steamers,  registry  of,  13 

Road.     See  Rules  of  road 

Robbery,  196,  197 

Rooles  of  Oleron.     See  Oleron 

Routes,  trade,  Shipping  Board 
may  establish  under  Mer- 
chant Marine  Act,  267 

Rules,  navigation,  150 

Rules  of  Oleron.  See  Oleron 
Rules  of 

Rules  of  the  road,  253 

Safe  port,  loi 
Sailor.    See  Seamen 
Sails,  included  in  sale,  23 
Sale,  bill  of.    See  Bills  of  sale 
Sale,    in    admiralty    proceedings, 
17,  r8 
effect  on  liens,  134,   135 
notice,  by  marshal,  iS' 
no  warranty,  18 
interlocutory,  221 
Sale,  in  partition  suit,  30 
Sale,     judicial,      discharge       of 
mortgage      upon      under 
Ship  Mortgage  Act,  279, 
280 
Sale    of    cargo,    master's    rights, 

47     . 
Sale    of    shipbuilding    plants    of 

Shipping     Board,     under 

Merchant     Marine     Act, 

270 
Sale  of  vessel,   bill   of,   what  to 

include,  17,  23 
by  master    (see  also  Master), 

19-22,  50 
by  mortgagee,  19 
by  parole,  10,  20,  22,  23 
by  trustees  and  executors,   18, 

19 
to  alien,  17 

to  alien,  Shipping  Board  ves- 
sels under  Merchant  Mar- 
ine Act,  226,  267 

to  alien,  Shipping  Board  to 
approve  under  Merchant 
Marine  Act,  284 


312 


INDEX 


to  American  citizens,  under 
Merchant  Marine  Act, 
266 

of  ship  at  sea,  22,  23 

proceeds  exempt  from  taxa- 
tion, when  under  Mer- 
chant Marine  Act,  275 

representations  prior  to,  23,  24 
Salvage     and     general     average, 
Chapter    XIII,    180-192 
Salvage,  seamen's  lien  not  assign- 
able, 248 
Salvor,  Lien,  181,  182 

successive,  186 

who  may  be,  183,  184 
Seamen,  Chapter  V,  54-68 

abandonment  of,  252 

age  requirements,  246 

berths.  249 

clothing  for,  250 

corporal  punishment  of,  pro- 
hibited,  252 

death  of,  250 

death  of,  right  of  action  under 
Merchant  Marine  Act, 
287 

foreign,  when  not  engaged  to 
work  in  United  States,  15 

hospital  accommodations,  250 

injuries  to,  250 

jury  trial,  right  to,  under  Mer- 
chant Marine  Act,  287 

language  of,  246 

lien  for  salvage,  not  assign- 
able, 248 

lien  for  wages  under  Merchant 
Marine  Act,  280 

loss     of     effects     in     collision, 

154-155 
majority    owners   may   employ 

and  dismiss,  28 
nationality  of,  247 
offenses  of,   251 
personal     injuries     to,     under 

Merchant     Marine     Act, 

287 
provisions,  scale  of,  249 
punishment    of,     authority    of 

master,  42 
qualifications,   246 

*The    several    subjects    treated 


salvors,  whether,  183,  185 
wages,   demandable   only   once 
in  same  port  under  Mer- 
chant Marine  Act,  286 
liability  of  master,  41 
liability  of  owner,  31 
lien  under  Merchant  Marine 
Act,  280 
washing  places,  249 
Seamen's  Act    (March  4,   1915), 

56.  245,  247,  249-251 
Seaworthiness,  generally  defined, 
70-72 
liability  for,  etc.,  70-72 
owners'  obligation  for,  30,  31 
defined,  31 
test  of,  31 
penalty  for  want  of,  dy 
proceeding   to    determine,    on 
complaint  of  seamen,  66, 
67 
warranty  of,  87,  88 
Seduction,  196 

of  passenger,  252 
Self-defense,  by  seamen,  61 
Ship    (^see  also  Vessel),  person- 
ality of,   112,   114 
what  is.   180,   181 
*Ship    Mortgage    Act    (June    5, 
1920),  text  of,  276-286 
See    also     Mortgages,     Liens, 
etc.. 
Shipbuilders   Lien,    11 
Shipbuilding  contracts,  10 
Shipbuilding  plants   of   Shipping 
Board,   insurance  of,  un- 
der     Merchant      Marine 
Act,  269 

Shipping,  American  Bureau  of 
under  Merchant  Marine 
Act,  276 

Shipping  Act  (September  7, 
1916),  231,  260,  261 

Shipping  Act,  Emergency,  re- 
pealed by  Merchant  Ma- 
rine Act,  263 

Shipping  Articles,  55,  63,  64 
242-244 

Shipping  Board,  260,  261 

this    act    are    indexed    under   their 


''ihe    several    subjects    treated    m    this    act    are    mdexea    under   tnen 
titles  throughout  this  Index,  with  page  references  to  the  text  of  the  act 


INDEX 


313 


appointment   and  duties   under 
Merchant     Marine     Act, 
264,  265 
approval,  for  change  of  regis- 
try, 27 
assignment    of    vessels    under 
Merchant     Marine     Act, 
267 
charters  to  be  filed  with,  86 
may    delegate     to    Emergency 

Fleet  Corporation,  288 
mortgages,  authority  over,  145 
sales   to   aliens,    Board   to   ap- 
prove, 17 
ships  immune  from  arrest,  219 
to  investigate  fighting  ships,  79 
vessels  sold  to  citizens,  entitled 
to  registry,   13 
Shipping  Commissioners,  63,  260 
Ship's  husband,    defined,   36 
Shore  captain,  36 
Single  ship  companies,  16,  123 
Sleeping  quarters,  249 
Slop-chest,  7 
Smuggling,  197 
Stand-by     Act     (September      4, 

1890),  158 
State  liens,  135 

Statutes.    See  Acts  of  Congress, 
Revised     Statutes,     Com- 
piled Statutes 
Steam  vessels,  inspection  of,  225 
Steamboats,  river  and  bay,  when 

entitled  to  registry,  13 
Stevedore,  duties,  72 

in  whose  employ,  under  char- 
ter, 105 
Hen  for  wages,  62 
lien    under    Merchant    Marine 

Act,  280,  283 
master's  control  over,  45 
Stolen  goods,  receiving,  196 
Stowage.     See       Loading       and 

stowage 
Stranding,    no    general    average, 
190 
not  collision,  148 
Subcharters,  loi 
Supervising    Inspector    General, 

259 
Supervising  inspectors,  rules,  150 


Supplies,  liability  for,  during  tem- 
porary ownership,   33 
lien  for,  125,  131 
lien    for,    provisions    of    Mer- 
chant Marine  Act,  285 
lien   for,   in   home  port,  under 
Merchant     Marine     Act, 
285 
majority    owners    may   pledge 

vessel   for,  28 
penalty  for  neglect  to  provide. 

67 
what    to   be   provided,   67 
when   included   in   sale,   23 
Supreme   Court.    See  Courts 
Survey,  cost  of,  152 
Surveyor,  marine,  duties  of,  66 
Surveyor's    certificates,   232,   233 

Taxation  of  vessel,  situs  for,  15 

Taxation,  when  proceeds  of  ves- 
sel exempt,  under  Mer- 
chant Marine  Act,  275 

Taxes.  See  Excess  Profits  Tax, 
Income  Tax,  Tonnage 
Taxes 

Temporary  ownership,  rights 
and  liabilities,  33 

Territoriality    of    vessel,    14,    15, 

193.   194 

Theft,  exception  of,  99 

Through  export  rates  under  Mer- 
chant Marine  Act,  277 

Through  fares  on  American  ves- 
sels under  Merchant  Mar- 
ine Act,  277 

Time  charters,  loi,  105 

Title   and   transfer.    Chapter    II, 
10-24 
under    Merchant    Marine    Act, 
284,  289 

Title,  record,  not  conclusive  of 
ownership,  36 

Tonnage.  See  Register  tonnage 
official.  See  Official  ton- 
nage 

Tonnage  taxes,  257 

Torts   liability   for,   during   tem- 
porary ownership,  33 
liability  of  owner  for  master's 

or  vessel's,  31-33 
liability  of  ship  for,  112 


314 


INDEX 


liens  arising  out  of,  i^ 

maritime,  defined,  4 

owner's,  31 

vessel  liable  for,  33,  34 
Tow,  liability  in  tort,   112 
Towage    and    pilotage,    Chapter 

XII,  159-179 

Towage,  distinguished  from  sal- 
vage, 184 
lien  for,  under  Merchant  Ma- 
rine Act,  285 
Trade  routes,  Shipping  Board  to 
establish  under  Merchant 
Marine  Act,  267 

Transfer.  See  Title  and  trans- 
fer 

Treaties,  restricting  discriminat- 
ing duties,  to  be  termi- 
nated under  Merchant 
Marine  Act,  287 

Trial,  jury,  seamen's  right  to, 
under  Merchant  Marine 
Act,  287 

Trial  of  offenses,  place  of,  194 

Trover,  for  wreck,  206 

Trustees  and  executors,  sales  by, 
18,  19 

Trustees,   may  be   owners,   25 

Tug.    See    Towage    and    pilot- 
age, 
liability  in  tort,  112 

Tutuila,  registry  of  vessels  trad- 
ing with,  12 

Underwriters,  Habihty  of,  113 

Unfair  practices,  Shipping  Board 
to  make  rules  to  meet 
under  Merchant  Marine 
Act,  272 

United  States  Compiled  Statutes 
1916.  See  Compiled  Stat- 
utes 

United  States  Revised  Statutes, 
See   Revised   Statutes 

United  States  Shipping  Board. 
See  Shipping  Board 

Unseaworthiness,  penalty  for,  195 

Valuation  in  bill  of  lading,  99,  100 
♦Vessel  (see  also  Ship) 

*For  what  is  or  is  not  a  vessel, 
Raft,  Drydock,  etc. 


defined,  2 

destruction   before   completion, 

effect  on  title,  11 
fcxreign,     American-built,     re- 
cording of,  16 
foreign-built,  not  to  trade  coast- 
wise, 13 
exceptions,   13 
I06S   before   completion,    effect 

on   title,   II 
may  sue  and  be  sued,  5 
of   United   States,  what  is,   13 
personality    of,    5,    33,    34 
sale  of,  Chapter  II,  17-24 
territoriality   of,    14,    15 
under    construction,    not    sub- 
ject   to    admiralty    juris- 
diction, II,   12 
when     subject     to     admiralty 
jurisdiction,  2 
Vessels,   provisions  of  Merchant 
Marine  Act  definition,  288 
mortgaged,  transfers  of,  284 
requisition  of.  War  Emergency 
Act,  repealed,  264 
Voyage    charter,    dissolution    by 

accident,  107 
Voyage,  whether  coastwise,  how 

determined,   13,   14 
Wages  (see  also  Seamen),  64, 
247,  248 
in  collision  cases,  152 
liability  of  master,  41 
liabiHty  of  owner,  31 
lien,  seamen's,  55,  61-63 
lien    under    Merchant    Marme 

Act,  280 
master's,  43 
War,   effect  on   charters,   107 
Warranty,  in  sales,  23,  24 

none  in  admiralty  sale,  18 
Washing  places  for  seamen,  249 
Watch  and  Watch,  248 
Watch     officers,     nationality    of, 
246 
must  be  citizens,,  13 
Watchman,  lien  for  v^ages,  62 
Water   tenders,    hours    of    labor, 

248 
Waters      subject     to     admiralty 
Jurisdiction      (see     also 

see  particular  titles,  such  as  Dredge, 


! 


INDEX 


315 


Jurisdiction),  3,  4 
Wharfage  and  moorage,  Chapter 

XVI,  209-217 
Wharfinger's  lien,  214 
Wireless,  penalty   for   failure   to 

carry     {see    also    Radio 

telegraph),  195 
Work  day,  248 
Workmen's    compensation    laws, 

as  applied  to  seamen,  56, 

57 
Wreck,  collision  with,  148 
master's  duty  to  preserve,  51 
not  within  admiralty  jurisdic- 
tion, 2 


rebuilt,  registry  of,  12 
registry   of,  230 
Wreck  or  stranding,  as  affecting 

cargo,  51 
Wrecks    and    derelictls,    Chapter 

XV,  202-208 
Writs,  220-222 

Yachts,  registry  of,  13 

York-Antwerp  Rules,  7 

Yukon  River,  traffic  on,  whether 
coastwise  under  Mer- 
chant Marine  Act,  277 


(1) 


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